Dempster v. Lansingh
| Citation | 84 N.E. 1032,234 Ill. 381 |
| Parties | DEMPSTER v. LANSINGH. |
| Decision Date | 03 June 1908 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; E. F. Dunne, Judge.
Suit by David S. Dempster against Killian V. R. Lansingh. There was a decree of the Appellate Court (128 Ill. App. 388) affirming a decree for defendant, and plaintiff appeals. Reversed and remanded.
By the original bill filed in this case the ownership of 455 shares of stock in the Rosehill Cemetery Company is sought to be determined. This company was organized in 1859, and its property is located in Cook county. For a detailed history of previous litigation which has arisen between various parties concerning the company and the ownership of stock therein, we refer to the statement made by this court in the case of Higgins v. Lansingh, 154 Ill. 301, 40 N. E. 362, and to the case of Rosehill Cemetery Co. v. Dempster, 223 Ill. 567, 79 N. E. 276.
The original bill in this case was filed in the circuit court of Cook county April 7, 1902, and, after briefly reciting the history of the Rosehill Cemetery Company, it alleged that in 1882 certain stockholders, believing that the business of the company was being managed to the injury of stockholders, desired to take the management out of the control of the creditors, who had had the management of the company's affairs for many years; that a number of such stockholders entered into an agreement whereby appellee and one Kean were made trustees for the other parties to the agreement to effect a settlement of the affairs of the company; that appellee entered upon the discharge of the duties as trustee, and in 1882 commenced legal proceedings to compel an accounting and a settlement by the creditors; that such proceedings remained pending in the courts of this state until August 4, 1896 (Higgins v. Lansingh, supra); that large costs and expenses were incurred which were contributed by appellant and other parties to the agreement, but that some of the parties neglected and refused to contribute their share, and that appellee unlawfully withholds an accounting of such costs and expenses; that he should account, and show which of the said parties have failed to contribute, the stock such parties hold, and the amount per share due on said stock; which of said parties did so contribute, the stock they held and the amount per share they contributed, which of said parties, if any, have contributed more than their pro rata share, the stock they held, and the amount per share due them as rebate, if any. The bill further alleges that, while acting as trustee, appellee caused to be assigned and transferred to himself the full legal interest to 455 shares of the original issue of the stock of said company, which he then held and had been theretofore holding as trustee, to be held in trust for the use and benefit of all of the other parties to said agreement; that such shares of stock were wrongfully claimed by appellee as his individual property, were not distributed by him, but were permitted to remain in the hands of appellee until an accounting might be had. The bill prays for an accounting from the appellee, and that he might be decreed to turn over to the appellant whatever stock and money should be found due him on the accounting. The bill further alleges, on information and belief, that appellee has little or no property aside from the stock and dividends in controversy, and is in danger of drifting into insolvency or of disposing of said shares and dividends; that he spends a large part of his time out of Illinois, and appellant therefore prays that appellee be enjoined from selling, assigning, voting, transferring, delivering, or incumbering, or in any way or manner disposing of or intermeddling with, said stock and dividends, and from collecting any dividends that might thereafter be declared on said stock, and from making any assignment of his property or confessing any judgment for the purpose of enabling other persons to obtain his property or liens thereon. The bill also prays for a receiver of the stock and dividends, and of all the estate and property of appellee, both real and personal.
On the same day the bill was filed, April 7, 1902, and without notice, an injunction was granted in accordance with the prayer of the bill upon a bond of $500, and a receiver was appointed for all the property and estate of appellee. Summons and a writ of injunction were served on appellee, and on June 3, 1902, he filed his answer to the bill and on the same day entered his motion to dissolve the injunction and discharge the receiver. This motion was continued from time to time until some time in July, 1902, when it was taken up by the court, and, after two days spent in an oral hearing, it was by the court, of its own motion, referred to the master on July 18, 1902. The order of reference was as follows: ‘This cause coming on to be heard on the motion of the defendant, Killian V. R. Lansingh, to dissolve the injunction and discharge the receiver herein, and the court having heard the arguments of counsel, and it appearing to the court that the facts are not fully before this court, it is ordered that said cause be and the same is hereby referred to Stillman B. Jamieson, one of the masters in chancery of this court, to take testimony and report to the court his conclusions of fact and of law on the following propositions.’ Twenty-six different questions of law and fact followed. The twenty-fourth of these questions was ‘whether or not delay or lapse of time has precluded the complainant from relief by way of temporary injunction.’ The twenty-fifth was: ‘Under the facts as found, is the defendant, Killian V. R. Lansingh, entitled to have the injunction entered herein dissolved?’ The twenty-sixth was: ‘Under the facts as found, is the defendant, Killian V. R. Lansingh, entitled to have the receiver heretofore appointed discharged?’ After many hearings the master filed his report on June 13, 1903. The report sets forth the order of reference and the 26 separate findings of law and fact which the master was directed to make. His conclusions are given seriatim on the interrogatories; the answer to the twenty-fourth being ‘that Dempster has been guilty of laches to such an extent as to bar him from the relief asked for, without a full and complete hearing.’ In response to the twenty-fifth interrogatory the master states ‘that the issuing of the preliminary injunction ex parte and without notice was ill-advised,’ and said master finds that said temporary injunction should not be continued in force, but, on the contrary, should be dissolved. In answer to the twenty-sixth interrogatory the master found that appellee was not insolvent, but that he had ample means to enable him to pay whatever amount might he found due from him in any accounting between the parties, and he recommended that the receiver be discharged.
Exceptions were filed to the master's report, which were overruled, and on September 15, 1903, the court sustained the report, and directed that a decree by entered dissolving the injunction and discharging the receiver. This was done on September 18, 1903, and leave was given appellee to file suggestions of damages within 10 days. The suggestions of damages were filed by appellee September 26, 1903, and were set for hearing on the next trial calendar. The suggestions of damages aggregated $19,601.85, and contained the following items: Attorneys' fees, $16,000; master's fees, $1,518.25; for transcripts of testimony and arguments heard before the master, $1,266.70; stenographer's charges for work done in and about the procuring of the dissolution of the injunction, $202.40; for the services of an expert bookkeeper in an examination of the books of the company and making a schedule of the same to be used in evidence before the master, $50; witness fees, telegrams, and other expenses in and about procuring the dissolution of...
To continue reading
Request your trial