Curran v. Harris Trust & Sav. Bank

• Decision Date: 14 November 1952
• Docket Number: Gen. No. 45826
• Citation: 108 N.E.2d 729,348 Ill.App. 210
• Court: United States Appellate Court of Illinois
• Parties: CURRAN v. HARRIS TRUST & SAVINGS BANK. HARRIS TRUST & SAVINGS BANK v. CURRAN et al. Appeal of NASH.

Page 729

108 N.E.2d 729

348 Ill.App. 210

CURRAN v. HARRIS TRUST & SAVINGS BANK.

HARRIS TRUST & SAVINGS BANK v. CURRAN et al.

Appeal of NASH.

Gen. No. 45826.

Appellate Court of Illinois, First District, Second Division.

Nov. 14, 1952.

Clark & Fisher, Chicago, William E. Moran, Chicago, of counsel, for appellant.

Chapman & Cutler, Chicago, Roscoe C. Nash and Spencer Le Roy, Jr., Chicago, of counsel, for appellee.

ROBSON, Presiding Justice.

This is an interlocutory appeal from an order of the trial court entered March 12, 1952, which denied a motion by Thomas D. Nash, administrator of the estate of Helen Carlin, deceased, counterdefendant herein (hereinafter called counterdefendant Nash), to strike the amended and supplemental counterclaim for interpleader and injunction filed by the Harris Trust & Savings Bank, counterplaintiff, to dismiss counterdefendant Nash, as administrator to the cause, and to dissolve a temporary injunction restraining said counterdefendant, from prosecuting a certain cause of action entitled, 'Thomas D. Nash, administrator with the Will annexed of the Estate of Helen Carlin, deceased, vs. The Northern Trust Company, an Illinois corporation, Municipal Court Case No. 52 M 1362.'

We are confronted at the outset with a procedural question. Section 78 of the Civil Practice Act, Ill.Rev.Stat.1951, ch. 110, par. 202, provides as follows:

'Whenever an interlocutory order or decree is entered granting an injunction or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, * * * an appeal may be taken therefrom to the Appellate Court'.

Counterplaintiff maintains that it is not intended by this section to provide for a review of the propriety of the rulings of the trial court on motions in the nature of a demurrer but that the only purpose of that section is to permit a review of the record or pleadings to the extent necessary to determine the sufficiency thereof to sustain the interlocutory order under review.

This section has been interpreted by our courts to permit the party appealing from the interlocutory order to ask this court to determine not only whether the trial court had the discretionary right to issue the temporary injunction but also to consider whether or not the complaint upon which the temporary injunction was issued was proper and sufficient to sustain such injunction. Biehn v. Tess, 340 Ill.App. 140, 91 N.E.2d 160; Peterson v. Grisell, 330 Ill.App. 587, 71 N.E.2d 832. We are of the opinion that on this appeal counterdefendant Nash may argue that the counterclaim does not entitle the counterplaintiff to the relief sought in equity. In considering the counterclaim we must accept as true the facts well pleaded but not conclusions of law or conclusions of fact unsupported by allegation of specific facts upon which such conclusions rest. Only propositions of law are presented by this appeal.

In view of this conclusion there are then two points that we must consider. The first point, which is one of first impression in Illinois, is whether the Civil Practice Act permits new parties to be brought in as counterdefendants to a counterclaim where a complete determination of the controversy cannot be had without their presence. Counterdefendant Nash contends that the right, if any, to make him a counterdefendant is governed by Section 38 of the Illinois Civil Practice Act, Smith-Hurd Ann.St., ch. 110, par. 162, the pertinent part of which is as follows:

'(1) Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more co-defendants, whether in the nature of set-off, recoupment, cross-bill in equity or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross-demand in any action, and when so pleaded shall be called a counterclaim.'

He contends that as he was not a party, plaintiff or defendant to the original complaint, he could not be joined as a counterdefendant to the amended and supplemental counterclaim.

If a strict literal interpretation of this section of the statute alone is taken there might be some substance to this contention. However, the courts of this state have on numerous occasions stated that the Civil Practice Act must be liberally construed so that controversies may be speedily and finally determined according to the substantive rights of the parties. People v. Frick, 367 Ill. 446, 11 N.E.2d 955; People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill.App. 362, 13 N.E.2d 990; Weigend v. Hulsh, 315 Ill.App. 116, 42 N.E.2d 146; Harris v. Sovereign Camp of Woodmen, Inc., 302 Ill.App. 310, 23 N.E.2d 793.

It is a fundamental principle of statutory construction that a statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. People ex rel. Barrett v. West Side Trust & Savings Bank, 362 Ill. 607, 1 N.E.2d 81; People ex rel. Nelson v. Olympic Corp., 405 Ill. 440, 91 N.E.2d 597; Trapp v. Gordon, 366 Ill. 102, 7 N.E.2d 869.

Section 25 of the Illinois Civil Practice Act, which provides as follows,

'(Bringing in new parties.) Where a complete determination of the controversy cannot be had without the presence of other parties, the court may direct them to be brought in. Where a person, not a party, had an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party. A new party shall be brought in by the service of a summons, which shall be drawn in the usual form with the addition of the statement, preceding the teste thereof, that this summons is issued pursuant to an order of the said court made on a date named.'

superseded Section 34 of the Chancery Act of 1872 which provided that a cross-bill might bring in new parties. Hurd v. Case, 32 Ill. 45; Jones v. Smith, 14 Ill. 229; Worthy v. Day, 143 Ill.App. 274. Section 25 was designed to preserve in full the chancery practice as it existed. 28 Ill.Law Review, 868 and 869.

Applying the rule of statutory construction to Sections 25 and 38 of the Practice Act and construing them together, it cannot be doubted that these sections were designed to continue the previous chancery practice with respect to parties to cross-bills as it existed from 1852 to the date of the adoption of the Practice Act. It is not contended by counterdefendant Nash that plaintiff Elizabeth Curran was not properly made a party to the counterclaim. Certainly then after considering the principles heretofore discussed, it would be a travesty on justice to say that the Practice Act places the administration of justice in a legal straight jacket and prohibits the court from a complete determination of the controversy because counterdefendants Nash, McGough and Mahan were not parties to the original proceeding.

Counterdefendant Nash cites Countiss v. Whiting, 306 Ill.App. 548, 29 N.E.2d 277, Chicago Title & Trust Co. v. Wolchinovesky, 326 Ill.App. 194, 61 N.E.2d 264, and Aaron v. Dausch, 313 Ill.App. 524, 40 N.E.2d 805, as holding that counterplaintiff had no right to join counterdefendant Nash as a party to the complaint. In each instance none of the counterdefendants were parties to the original action. In the case before US Elizabeth A. Curran, the plaintiff and party to the original action, is one of the counterdefendants. There are other points of distinction but in our opinion this one point is sufficient to take this case out of those cited by counterdefendant.

The second point is whether the amended and supplemental counterclaim for interpleader is sufficient to support the temporary injunction entered by the trial court. The leading case of Platte Valley State Bank v. National Live Stock Bank, 155 Ill. 250, 40 N.E. 621, states the requirements for interpleader. In that case the Supreme Court said, 155 Ill. at page 257, 40 N.E. at page 623 'It is laid down in 3 Pom.Eq.Jur. § 1322, that the equitable remedy of interpleader depends upon, and requires the existence of, the four following elements: 'First. The same thing, debt, or duty, must be claimed by both or all the parties against whom the relief is demanded. Second. All their adverse title or claims must be dependent on, or be derived from, a common source. Third. The person asking the relief--the plaintiff--must not have nor claim any interest in...