Callner v. Greenberg, 25231.

• Decision Date: 13 October 1939
• Docket Number: No. 25231.,25231.
• Citation: 23 N.E.2d 29,372 Ill. 176
• Parties: CALLNER v. GREENBERG et al.
• Court: Illinois Supreme Court

372 Ill. 176

23 N.E.2d 29

CALLNER

v.GREENBERG et al.

No. 25231.

Supreme Court of Illinois.

Oct. 13, 1939.

Suit by Milton H. Callner against Samuel Greenberg and others to redeem from a foreclosure sald and for other relief. From an order dismissing the cause for want of equity, the plaintiff appeals.

Cause transferred to the Appellate Court for the First District.Appeal from the Circuit Court, Cook County; Stanley H. Klarkowski, judge.

Levisohn & Levisohn, of Chicago, for appellant.

Morton C. Chester, Morris L. Kilmnick, and B. P. Traynor, all of Chicago, for appellees.

WILSON, Chief Justice.

Milton H. Callner filed an amended complaint to redeem from a sale of certain premises held on October 18, 1933, pursuant to a decree of foreclosure, and for other relief. The amended complaint alleges that Callner, a second mortgagee, was joined by the bank which, as trustee, instituted the foreclosure proceeding, not by his proper name but under the description of ‘Unknown Owners;’ that his address and the fact that he was the holder of junior trust deed notes were both known to the officers and agents of the trustee bank, and the attempted service of notice on him by publication under the designation of an unknown owner was fraudulent; that an order was entered defaulting unknown owners, a decree of sale entered and the premises sold; that Callner did not learn of these proceedings nor of the sale until August 15, 1937, and was prevented from redeeming, although he was ready, able and willing to have done so. The amount of the indebtedness found to be due the complainant foreclosing the first trust deed was $51,235.99. The premises were sold for $8,500.

Certain facts were alleged in support of the charge of fraud with respect to the failure to give Callner proper notice and the plaintiff offered to pay, and tendered in open court, $8,500 with interest from October 18, 1933, the date of the sale pursuant to the foreclosure decree. The prayer of the complaint was that the master in chancery be directed to execute an instrument evidencing the redemption and to register the same in the office of the registrar of titles of Cook county; that the certificate of sale issued by the master in chancery in the foreclosure proceeding be set aside, vacated and delivered to the master to be canceled, and for the foreclosure of the junior trust deed, and for general relief. The amount of the indebtedness under the junior trust deed was about $5,000, which it is alleged remains unpaid. Three of the defendants moved to strike from the files the amended complaint and to dismiss the cause for want of equity. The court allowed the motion and an order was accordingly entered, from which the plaintiff prayed an appeal direct to this court.

The defendants challenge the jurisdiction of this court to review the order of the circuit court on a direct appeal but have not requested the transfer of the cause to the Appellate Court. The plaintiff contends that the appeal was properly taken direct to this court because, in addition to redemption from a foreclosure sale, the plaintiff also seeks to set aside a master's deed conveying the premises to one of the defendants who purchased at the foreclosure sale. Two cases are cited in support of the contention. In the first, Smith v. Jackson, 153 Ill. 399, 39 N.E. 130, the suit was one to foreclose a second mortgage. The senior mortgagee was not made a party. By a cross-bill, however, the cross-complainant claimed title in fee to a part of the land under a master's deed. The issue made by the cross-bill and answer thereto was the validity of the deed. When it was decree that the deed was void and conveyed no title a freehold was directly involved and an appeal was prpperly prosecuted direct to this court. In the second case, Kronenberger v. Heinemann, 190 Ill. 17, 60 N.E. 64,...