Friedman v. Lesher

• Decision Date: 19 June 1902
• Citation: 64 N.E. 736,198 Ill. 21
• Parties: FRIEDMAN v. LESHER et al.
• Court: Illinois Supreme Court

198 Ill. 21

64 N.E. 736

FRIEDMAN

v.LESHER et al.¹

Supreme Court of Illinois.

June 19, 1902.

Error to appellate court, First district.

Suit by Jacob H. Lesher and another against William Friedman, assignee, to determine a claim of priority to an assignment for the benefit of creditors. From an order of the appellate court (99 Ill. App. 42) reversing a judgment for defendant, defendant brings error. Affirmed.John S. Stevens, for plaintiff in error.

Alden, Latham & Young, for defendants in error.

WILKIN, J.

The M. H. Vehon Company was incorporated under the laws of this state February 28, 1895, with a capital stock of $6,000. The shares of stock were $100 each, of which Morris H. Vehon owned 4, A. Strumpf 6, and Marie H. Vehon 50. These three stockholders were the directors of the company; Morris H. Vehon being the president, and Marie H. Vehon, his wife, vice president. Within a year of its organization the company became embarrassed financially. Prior to February 10, 1896, it had executed to Jacob H. Lesher and John H. Bobo, as J. H. Lesher & Co., a judgment note for $1,500. On the evening of June 5th Morris H. Vehon, the president and general manager of the company, suddenly died. On the following morning Marie H. Vehon, as vice president, without authority from the board of directors, executed and delivered a deed of voluntary assignment under the statute for the benefit of the company's creditors. That instrument was recorded at 9:25 a m. June 6th, and filed with the clerk of the county court at 9:30 a. m. the same morning. At 9:27 a. m. of the same day Lesher & Co. entered a judgment in the circuit court of Cook county upon their note for $1,550, and caused an execution to be immediately issued, which was delivered to the sheriff of the county at 9:35 a. m., and he instructed to levy upon the tangible property of said M. H. Vehon Company. On reaching the company's place of business he found the assignee in possession of the same and of all its property, and he therefore returned the execution at the end of 90 days unsatisfied. About 8 o'clock p. m. of the same day, June 6, 1896, the two surviving directors met and ratified the making of the assignment. Claims were filed against the insolvent estate amounting to $9,234.22, $1,629.04 of which was the claim of Lesher & Co.; $1,557.16 of that amount being the judgment by confession so obtained on the 6th of June, for which they claimed a lien upon the company's assets and priority over the other creditors. The total assets of the insolvent estate were $2,738.93. Upon the hearing in the county court the claim of priority was sustained, and the assignee directed to pay the judgment in full. The assignee prosecuted an appeal from that order to the appellate court for the First district. The branch of that court to which the record was assigned reversed the order of the county court and remanded the cause generally. It was then stipulated by the parties that the cause should be reheard upon the complete record as filed in the appellate court on the appeal, ‘and such other evidence as either of the parties might offer.’ Upon that hearing an order was entered by said county court January 12, 1901, denying the petition by Lesher & Co. for a preference, but allowing their claim as a general claim against the assigned estate. From that order they prosecuted an appeal to the appellate court for the First district, which, on December 12, 1901, filed an opinion, in which it was stated that the judgment of the county court was reversed, and the cause remanded to that court for further proceedings in conformity with the views expressed in the opinion. It seems that the clerk, in entering the order of remandment, made it read, ‘such further proceedings as to law and justice may appertain.’ Subsequently, at the same term, the appellants entered a motion to correct that entry, so as to make it conform to the judgment actually rendered, as shown by the opinion filed, which motion was allowed; but, instead of amending the former order made, the clerk entered an original one, ‘remanding the cause for further proceedings in accordance with the views herein expressed.’ Thereupon a further motion was made on February 15, 1902, as shown by the additional record heretofore allowed to be filed in this court, to correct said last-mentioned mistake, which was granted, and the final judgment corrected so as to read: ‘The order and judgment of the county court of Cook county in this behalf rendered be reversed, * * * and that this cause be remanded to the county court of Cook county for further proceedings in accordance with the views expressed in the opinion of this court this day filed herein.’ From that judgment the plaintiff in error, assignee of the M. H. Vehon Company, prosecutes this writ of error. The defendants in error have entered their motion to dismiss the writ, upon the ground that the judgment of the appellate court is not final, which motion has been taken with the case.

The proceeding in the county court was an equitable or chancery proceeding. The only issue in that court was whether or not defendants in error were entitled to a preference over the other creditors of the estate. The court found the issue against the claimants. The appellate court, it is true, reversed the judgment and remanded the cause to the county court; but it did so with special directions to proceed according to the views expressed in its opinion, which opinion finally disposed of the issue below. If the cause had been reinstated in the county court, all that court could do would be to carry into effect the directions of the appellate court. Section 90 of the practice act allows appeals from and writs of error to the appellate court in all cases where the judgment, order, or decree of that court is such that no further proceedings can be had in the court below, except to carry into effect its mandate and directions. Hurd's Rev. St. 1899, p. 1297; Englewood Connecting R. Co. v. Chicago & E. I. R. Co., 117 Ill. 611,...