Doner v. Phoenix Joint Stock Land Band of Kansas City

• Citation: 45 N.E.2d 20,381 Ill. 106
• Decision Date: 18 November 1942
• Docket Number: No. 26680.,26680.
• Parties: DONER v. PHOENIX JOINT STOCK LAND BAND OF KANSAS CITY et al.
• Court: Supreme Court of Illinois

381 Ill. 106

45 N.E.2d 20

DONER

v.PHOENIX JOINT STOCK LAND BAND OF KANSAS CITY et al.

No. 26680.

Supreme Court of Illinois.

Nov. 18, 1942.

Action by Henry M. Doner against the Phoenix Joint Stock Land Bank of Kansas City and others, to declare a constructive trust in certain lands in favor of plaintiff. From orders entered on motion to strike plaintiff's second amended complaint, the plaintiff appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Shelby County; J. T. Buillington, judge.

Mary C. Martin, of Springfield, F. Mark Miller, of Benton, and Murray & Murray, of Centralia, for appellant.

John J. Baker, of Shelbyville, for appellees.

THOMPSON, Justice.

This is a direct appeal from the circuit court of Shelby county. The purpose of the suit was to declare a constructive trust in certain lands in that county in favor of plaintiff. The appeal is from orders entered on a motion to strike plaintiff's second amended complaint. Defendants filed a motion in this court to dismiss the appeal for want of a final, appealable order. The motion was taken with the case.

The first order, dated October 7, 1941, declared in substance that the motion made by the defendants to strike the second amended complaint was allowed and the complaint, as amended, stricken. Plaintiff did not take leave to file an amended complaint or have his election to stand on his pleading noted of record. The next order entered was November 10, 1941, the material parts of which are: ‘Motion by defendants to dismiss suit. It appearing to the court that on October 7, 1941, the second amended complaint, as maended, was stricken by order of the court, said motion is sustained and the suit is dismissed at the costs of the plaintiff. Clerk will forthwith notify counsel for plaintiff of the entry of this order. Stricken.’

On the fifth of January following, plaintiff filed a notice of appeal in which it is said: ‘Plaintiff hereby appeals from the final order entered by the circuit court of Shelby county, Illinois, in the above entitled cause whereby it was ordered, adjudged and decreed that the second amended complaint, as amended, in this cause be dismissed for want of equity and that plaintiff pay the costs of said proceeding.’

It must be conceded that the order of October 7, sustaining the motion to strike and striking the complaint, when standing alone, cannot be considered as a final appealable order. Barber v. Wood, 318 Ill. 415, 149 N.E. 231;Trebbin v. Thoeresz, 316 Ill. 30, 146 N.E. 542;Williams v. Huey, 263 Ill. 275, 104 N.E. 1008. It is equally true that there is a marked difference between an order striking a case from the docket, which is not final (Frederick v. Connecticut River Savings Bank, 106 Ill. 147), and an order dismissing the suit and assessing costs against the plaintiff, as was entered in this case, after the order of October 7.

The contention that the order dismissing the suit was not on the merits because the record fails to show that plaintiff elected to stand by his complaint cannot be sustained. If he had wished to amend further he should have asked leave to do so. By omitting to do that he elected to stand by his complaint and the proper order was for its dismissal. McDowell v. Cochran, 11 Ill. 31. While an order which merely sustains a motion to strike is not final and appealable, where a final order of dismissal of the suit follows the ruling on the motion to strike, it is sufficient evidence of an election to stand by the complaint. Hansen v. Independent School District, 193 Iowa 417, 186 N.W. 922, 21 A.L.R. 260. The notice of appeal in this case is sufficient to show that the appeal is from both the ruling on the motion to strike and from the final order dismissing the suit. First Title & Securities Co. v. United States Gypsum Co., 211 Iowa 1019, 233 N.W. 137, 73 A.L.R. 1196. The merits of the case are properly before us for consideration.

The second amended complaint, as amended, alleged, in substance, that on March 30, 1939, and thereafter, plaintiff was the owner and in actual possession of the 101.5 acres of land in Shelby county specifically described; that plaintiff, up to the time of filing the complaint, was occupying said premises as a homestead; that plaintiff was indebted to Liberty Joint Stock Land Bank, and a mortgage to secure said indebtedness was, on March 30, 1939, in process of foreclosure by Phoenix Joint Stock Land Bank as assignee of the Liberty Joint Stock Land Bank; that pursuant to the foreclosure decree the Phoenix Joint Stock Land Bank bid in the property at the sale on March 30, 1939, for $4000 and was entitled to a master's deed subject to the rights of redemption; that after the date of the sale and before March 30, 1940, the purchaser repeatedly advised plaintiff that he would be allowed to redeem at any time within fifteen months and communicated such advice both verbally and by letter dated August 30, 1939, which was attached to the complaint as Exhibit ‘A’; that he relied upon such advice and, acting upon it, he failed to redeem on or before March 30, 1940, and on or before June 30, 1940, the purchaser agreed to extend the time to July 1, 1940; that the Shelby Loan and Trust Company was appointed receiver of said real estate and continued as such to and including July 5, 1940; that defendant L. C. Westervelt was the trust officer of Shelby Loan and Trust Company, and, as such, transacted all the business of the receivership; that by reason of his transaction of the receivership business and also his repeated dealings between the parties, there existed, between the plaintiff and said Westervelt, a fiduciary relationship; that on June 24, 1940, Westervelt represented to plaintiff that he would redeem the property if plaintiff would agree to deed to said Westervelt an undivided one-half interest in and to the oil and gas in, under, and that might be produced from, said real estate, and would agree further to pay said Westervelt $2500 within two years, and that plaintiff accepted and entered into said agreement; that said real estate was in an area of intensive oil activity and that the oil and gas rights had a value of $7500; that plaintiff, by reason of his agreement with Westervelt, refused bona fide offers from others of a similar nature to redeem the property for plaintiff; that on the day before the expiration of the period of redemption Westervelt advised plaintiff that other parties who were interested with him refused to go through with the contract, and plaintiff requested Westervelt to call the purchaser and request an extension of time to redeem, which Westervelt did, and obtained an extension to July 2; that Westervelt then agreed to assist plaintiff in working out the terms of the agreed transaction and Westervelt contacted other parties to arrange for the redemption according to the terms of the aforesaid agreement; that Westervelt, in an attempt to cheat and defraud plaintiff, tendered the redemption money himself to the Phoenix Joint Stock Land Bank and caused the title to be conveyed to his nominee, Charles H. Hulick, Sr., and both Hulick and Westervelt have since refused, although often requested, to convey the premises to plaintiff subject to a reservation of one half the oil and gas rights; that Hulick and his wife have since conveyed undivided interests to various named defendants on the directions of Westervelt, and that said defendant grantees knew, and were charged with notice of, plaintiff's rights in the premises when they accepted the conveyances; that subsequent to the acquisition of title by the defendants the value of the oil and gas rights has steadily mounted, that a test well in the immediate vicinity has been drilled and is producing oil in commercial quantities; that Westervelt is of limited financial responsibility and plaintiff is without adequate remedy except in equity; and that plaintiff has been and still is ready and willing to pay the sum of $2500, as provided in his agreement and within the time fixed thereby. Plaintiff prayed that defendants, Westervelt and his grantees, be decreed to hold their respective interests in said real estate as trustees for plaintiff and that they be decreed to convey to plaintiff, reserving a one-half interest in the oil and gas, upon payment to defendants of $2500, at the time and in the manner to be fixed by the court, and that plaintiff have such other and further relief as may be equitable.

The joint and several motion to strike the complaint was based on the following grounds: (1) that the complaint is vague, indefinite and uncertain and does not allege facts sufficient to entitle plaintiff to the relief sought; (2) that the alleged promises to extend the time to redeem are not binding on defendants; (3) that the verbal agreements to extend the time are contrary to the Statute of Frauds, and that the letter marked Exhibit ‘A’ shows a positive refusal to extend the time for redemption; (4) that the allegations of a fiduciary relationship are conclusions of the pleader; (5) that the alleged agreement of Westervelt to redeem the premises for plaintiff is in violation of the Statute of Frauds, Ill.Rev.Stat.1941, c. 59, § 1 et seq.; (6) that plaintiff makes no offer to do equity and does not tender the $2500.

The general order of dismissal rendered all the issues thereby raised res judicata. 10 R.C.L. 476; Oates v. Morningside College, 217 Iowa 1059, 252 N.W. 783, 91 A.L.R. 563;Sattenstein v. Earl, 328 Ill. 148, 159 N.E. 222. On this appeal the only errors assigned and argued are that the court erred in sustaining the motion to strike and in striking the complaint, and in dismissing the suit at plaintiff's costs. Every issue raised by the motion to strike is,...