King v. Int'l Bldg., Laon & Inv. Union

• Decision Date: 01 November 1897
• Citation: 170 Ill. 135,48 N.E. 677
• Court: Illinois Supreme Court
• Parties: KING v. INTERNATIONAL BUILDING, LOAN & INVESTMENT UNION.

170 Ill. 135

48 N.E. 677

KING

v.INTERNATIONAL BUILDING, LOAN & INVESTMENT UNION.¹

Supreme Court of Illinois.

Nov. 1, 1897.

Appeal from appellate court, First district.

Assumpsit by Ellen Duffey King against the International Building, Loan & Investment Union to recover on a stock certificate. From a judgment of the appellate court (68 Ill. App. 640) reversing a judgment overruling a motion to set aside a judgment against defendant by default, plaintiff appeals. Affirmed.George W. Brown, for appellant.

Story, Redfield & Russell, for appellee.

The action was assumpsit, brought by the appellant against the appellee union, in the superior court of Cook county. The declaration contained (1) a common count for goods, wares, and merchandise alleged to have been sold and delivered by the plaintiff to the defendant union, at its request; (2) a second common count, which was the consolidated money counts; and (3) a third common count, alleging indebtedness found due and owing plaintiff upon an accounting had with the defendant of and concerning divers sums of money before that time due and owing from defendant to the plaintiff; and also (4) a special count. The special count alleged that the plaintiff applied for 20 shares of stock in the defendant union, and was granted a certificate of the union constituting her a shareholder of that number of shares of stock, and agreeing that the union would pay appellant the sum of $100 for each of said shares of stock at the end of six years, provided the said appellant should pay the sum of 75 cents each month upon each of said 20 shares of stock for the said period of six years, and a fee of 5 per cent. upon the par value of said shares at the time of the maturity of the contract; that the said period of six years has elapsed, and the appellant surrendered 10 of said shares, and made all payments required of her to be made to the union on the remaining 10 shares, and complied with all the terms and conditions of the certificate, whereby the appellee union became and was indebted to her in the sum of the par value of the said 10 shares, and, in consideration of the said indebtedness, undertook and promised to pay the same to her on demand, but, though often demanded, failed and refused to do so; wherefore, etc. On the 11th day of July, 1896, said superior court caused to be entered of record a judgment in the sum of $971.50, against the union, by default. The said union entered its motion to set aside the default and judgment, and, in support thereof, submitted divers affidavits, together with documentary evidence, and, in opposition thereto, the appellant presented an affidavit. The court overruled the motion, and the appellee union prosecuted an appeal to the appellate court of the First district to reverse the judgment and the order of the court refusing to allow the motion to set aside the default. The appellate court reversed the judgment of the superior court, refused to remand the cause, and caused to be entered in its judgment the following, as a finding of fact in the case, viz.: ‘The court finds that the certificate upon which the plaintiff below recovered judgment was issued without lawful authority, and is not binding upon the defendant union.’ This is an appeal prosecuted to reverse the judgment of the appellate court.

BOGGS, J. (after stating the facts).

It appears from the statement of facts set out in the brief of the appellant that the only cause of action is that set out in the special count of the...