Baltimore & O.R. Co. v. Gaulter

• Decision Date: 09 November 1896
• Citation: 46 N.E. 256,165 Ill. 233
• Court: Illinois Supreme Court
• Parties: BALTIMORE & O. R. CO. v. GAULTER et al.

165 Ill. 233

46 N.E. 256

BALTIMORE & O. R. CO.

v.GAULTER et al.¹

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, First district.

Application by the Baltimore & Ohio Railroad Company to compel Frank J. Gaulter, clerk of the circuit court, and Henry Best, his predecessor, to account for certain moneys. An order denying the application was affirmed by the appellate court (60 Ill. App. 647), and the applicant appeals. Reversed.

Flower, Smith & Musgrave, for appellant.

Moran, Kraus & Mayer, for appellees.

CARTWRIGHT, J.

The Pullman Palace-Car Company filed its bill of interpleader in the circuit court of Cook county, against the Ohio & Western Coal & Iron Company, the Baltimore & Ohio Railroad Company, and others; and an interlocutory decree was entered, providing that, upon said complainant paying into court $31,683.63, an injunction should issue as prayed, and the complainant should be discharged. The money was paid November 6, 1889, to the appellee Henry Best, then clerk of the court. Complainant having been discharged from the suit, it proceeded between the parties claiming the fund, and was brought to this court by appeal, and reported as Warren v. Bank, 149 Ill. 9, 38 N. E. 122. Upon the cause being remanded, a decree of distribution was entered July 23, 1894, under which appellant was entitled to the surplus of the fund after other specified payments should be made. The appellee Frank G. Gaulter became clerk of the court December 5, 1892, and received the principal sum then on hand, from Best. Appellant filed its motion in the suit to require said clerks Best and Gaulter to account for and pay over to it the interest provided for in an order entered of record in the cause June 25, 1891, during such time as the fund was in their hands, respectively. The amended motion asked that they be required to so account and pay over, or that each should account for such interest as he had actually received on said fund as clerk while the same was in his possession. The circuit court denied the motion, and its action was sustained on appeal by the appellate court.

It is first claimed by appellees that the case is not before this court on its merits, for want of a complete transcript of the record and proceedings in the original cause; and it is said that the appellate court held the transcript insufficient for a consideration of its merits. It does not appear from the judgment of the appellate court that the cause was not considered in that court, and what is said in the opinion cannot be considered in contradiction of its judgment. The transcript contains a complete record of the motion and all proceedings had thereon, together with a certificate of evidence, which purports to contain all the evidence offered or heard upon either side in this proceeding against appellees, and it is certified by the clerk ‘to be a true, perfect, and complete transcript of the record.’ Although this proceeding was instituted under the same general title as the original cause in the circuit court, it commenced with the motion, and brought up a new question, in which only the parties to this appeal were concerned, and which was wholly separable from any other question in the case. The other questions were reviewed in Warren v. Bank, supra, and the motion raised no issue as to matters litigated between the contending parties in the original suit. It would be neither necessary nor proper to add to the transcript of the proceedings on this motion the evidence or record in the original suit, not related in any way to it, nor offered on the hearing. There is no insufficiency in the transcript.

The facts appearing on the hearing of the motion were as follows: The fund, when received by Best, was deposited in the Illinois Trust & Savings Bank. Some payments were made out of it, under orders of the court; and on June 25, 1891, the amount in the hands of the clerk was $30,138.23. On that day the parties to the cause presented to the court their stipulation that said money so deposited with the clerk of the court should be deposited by him in the Northern Trust Company or any other trust company or bank which might be determined upon by the court, provided such investment should bear interest at the rate of not less than 2 1/2 per cent. per annum, and be payable on demand or within five days. In pursuance of this stipulation, the following order was entered on the same day: ‘And now, this day, come all the parties to the above-entitled cause, and present to the court a stipulation agreeing to the investment of the money heretofore paid into court, and now in the hands of this court, and suggesting to the court the Illinois Trust and Savings Bank as a reliable company; and the court being advised of the terms on which said trust company will pay interest on deposits, it is therefore ordered that the clerk of this court pay to the said Illinois Trust and Saving Bank the funds now in his hands, and take a certificate of deposit therefor, which will bear interest at a rate not less than two and one-half per cent. per annum, and be payable five days after demand.’ The money was then in said Illinois Trust & Savings Bank, which paid interest to the clerk monthly on the same at the rate of 2 per cent. per annum. The order was not obeyed. The money remained in the bank, to the credit of the clerk. On November 11, 1891, there was paid out under an order of the court, to the master in chancery, $1,500. The remainder of the principal of the fund, which was paid over by Best, December 5, 1892, to the appellee Gaulter, as his successor, was $28,638.23, and this sum Gaulter retained until the final decree of distribution, on July 23, 1894. The bank paid to him, as it had previously paid to Best, interest on the money monthly, at 2 per cent. per annum. The appellees, by their answers, questioned the jurisdiction of the court over them, denied that they had any knowledge or notice of the order, alleged that each was entitled to 2 1/2 per cent. per annum as a reasonable compensation for services as custodian of the fund, and asserted that the bank would not have accepted the money on the conditions specified in the order.

There was no evidence under the claim of compensation for services as custodian, so that the claim must be regarded as abandoned. It is argued that the court had no jurisdiction of appellees, because the money was not received by Best as clerk. The interlocutory decree did not designate the clerk as depositary, nor order him to receive the money, and the argument is that he was therefore a mere depositary of the parties. That decree provided for the payment of the money into court, and it was paid by complainant, and received by the clerk, as...