Chicago & N.W. Ry. Co. v. Garrett

• Decision Date: 15 April 1909
• Citation: 239 Ill. 297,87 N.E. 1009
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. GARRETT. STRICKLER et al. v. CHATTERTON.

239 Ill. 297

87 N.E. 1009

CHICAGO & N. W. RY. CO.

v.GARRETT.

STRICKLER et al.

v.CHATTERTON.

Supreme Court of Illinois.

Feb. 19, 1909.

Rehearing Denied April 15, 1909.

Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Condemnation proceedings by the Chicago & Northwestern Railway Company against Ada S. Garrett, Harvey Strickler, and others, wherein William A. Chatterton filed a cross-petition. From an order of the superior court awarding said Chatterton damages for his supposed dower interest in the premises, said Strickler and others appeal. Reversed and remanded, with directions.

Wheelock, Shattuck & Newey, for appellants.

Thomas M. Headen, for appellee.

Wilson, Moore & McIlvaine, Lloyd W. Bowers, and Barlou Corneu, for Chicago & N. W. Ry. Co.

DUNN, J.

The Chicago & Northwestern Railway Company filed a petition for the condemnation, for a passenger station, of certain real estate in the city of Chicago, including certain premises at Nos. 32 and 34 West Randolph street. These premises had been the property of Martha S. Chatterton, who died in January, 1905, having devised them to her son, William W. Chatterton, by whom they were conveyed to Stephen B. Jones, who conveyed them to Harvey Strickler. Both Jones and Strickler executed mortgages for part of the purchase money, and all the parties named, together with the mortgagees and William A. Chatterton, were made defendants to the petition. William A. Chatterton was the husband of Martha S. Chatterton, and the order appealed from awarded him damages for his supposed dower interest in the premises. The appellants are the owners of the fee and lienholders.

For several years prior to November, 1903, William A. Chatterton and Martha S. Chatterton were living apart. In that month her father died, and under his will she became the owner of the property involved here. She consulted her attorney about obtaining a divorce, but before a bill was filed negotiations were begun by her husband, through his attorney, for securing his interest in her property. Besides the property derived from her father, Mrs. Chatterton had some property in Wilmette, in which her husband claimed an interest by reason of having contributed several hundred dollars to its purchase and improvement. It was finally agreed that Mrs. Chatterton should pay her husband $550 for a release of all his interest in her property. On January 30, 1904, Mrs. Chatterton filed her bill for divorce on the ground of desertion. No service was had, but on February 16th the appearance of her husband was entered. On March 9th he was defaulted. On March 24th a decree of divorce was granted. On March 25th the $550 was paid to his solicitor, and $500 was sent to a bank in San Francisco, together with a release, with instructions to pay the money to Chatterton, upon his executing the release and paying $50 solicitor's fees. On April 2d he executed the release, which was a release to Mrs. Chatterton of all his interest in her property. It was delivered to her on April 12, and was recorded May 28, 1904. Mrs. Chatterton died in January, 1905, and in June, 1906, a writ of error was sued out of the Appellate Court, upon which the decree of divorce was reversed in March, 1907, and in December, 1907, the judgment of the Appellate Court was affirmed by the Supreme Court. 231 Ill. 449, 83 N. E. 161,121 Am. St. Rep. 339. William W. Chatterton's conveyance to Jones was made in August, 1906, while the writ of error was pending in the Appellate Court, and both he and Strickler had been told by appellee's attorney that William A. Chatterton claimed dower in the premises, and that in the opinion of said attorney the release deed of William A. Chatterton was void and the decree of divorce would be reversed.

The petition for condemnation was filed in January, 1907, and on September 10, 1907, William A. Chatterton filed his cross-petition, which, as afterwards amended, avers the facts substantially as above stated, and alleges that the negotiations in regard to the payment to him and his release were conducted and the agreement made prior to the entry of the decree of divorce, but the money was not paid until afterward; that it was agreed that his appearance should be entered in the divorce suit but no defense made, though he had a meritorious defense, which was not presented because of the agreement, and that the contract was in violation of law. The cross-petitioner prayed for a separate award of damages for his dower interest. The court entered an order finding that the parties were not entitled to a separate award, and directing that compensation for the premises should be made to the owner or owners thereof, and that the petitioner might pay the award to the county treasurer of Cook county for the benefit of the owner or owners. Thereupon a jury was impaneled, and a verdict returned fixing the just compensation to be made to the owner or owners of the premises at $59,000.84, which amount was paid by the petitioner to the county treasurer of Cook county for the benefit of the owner or owners. A hearing was then had on the cross-petition, answer, and evidence, including a stipulation as to the facts, and a decree was entered finding that the deed of William A. Chatterton to Martha S. Chatterton releasing his interest in her property was made for the purpose of facilitating the entry of the decree of divorce and was contrary to public policy, and that William A. Chatterton was entitled to dower in the real estate, and fixing its value at $8,345.77.

A motion was made to dismiss the appeal. The appeal is from the order finding William A. Chatterton entitled to dower, fixing the amount and ordering its payment, and the appellants are the owners of the fee and the holders of incumbrances thereon. The grounds of the motion are that one respondent cannot appeal from a judgment in favor of another, but only the petitioner for condemnation can appeal,and that if one respondent can appeal he can do so only by appealing from the entire judgment against all the parties. The motion is based upon a misapprehension. This appeal does not involve the condemnation of the property or the rights of the petitioner, the Chicago & Northwestern Railway...