Fitzpatrick v. Rutter

• Decision Date: 20 January 1895
• Citation: 43 N.E. 392,160 Ill. 282
• Parties: FITZPATRICK v. RUTTER.
• Court: Illinois Supreme Court

160 Ill. 282

43 N.E. 392

FITZPATRICK

v.RUTTER.¹

Supreme Court of Illinois.

Jan. 20, 1895.

Appeal from appellate court, First district.

Creditors' bill by George Rutter against the Switchmen's Mutual Aid Association of North America. From a judgment for plaintiff which was affirmed by the appellate court (58 Ill. App. 532), John E. Fitzpatrick, receiver for defendant, appeals. Affirmed.

James C. McShane, for appellant.

William E. Hughes, for appellee.

WILKIN, J.

On November 20, 1893, George Rutter filed in the circuit court of Cook county his declaration in assumpsit against the Switchmen's Mutual Aid Association of North America, of which he was a member, to collect an indemnity of $1,000, claimed to be due him, under the rules of the association, for injuries sustained in a railroad accident. Summons was issued and served upon the officers of the association, but the declaration was not filed 10 days prior to the first day of the January term, 1894. By agreement of counsel, however, it was stipulated that the association would take no advantage of the failure to file the declaration in proper time. The declaration was filed on the first day of the January term, 1894, and on March 13th following, no plea being on file, judgment by default was taken against the defendant association. Execution having been issued thereon, and returned ‘No property found,’ Rutter, on June 18, 1894, filed a creditors' bill in the superior court of Cook county, based on the judgment of March 13th, to discover and reach moneys in the hands of the association. The defendant was served with summons, just as it was in the suit at law. No answer being made, it was defaulted. The officers of the association answered, for themselves and the other members of the association; and, upon their answer being replied to, the cause was referred to a master, and proofs were taken upon the issue thus formed. The decree of the court was in favor of complainant. Defendants severally prayed an appeal, but afterwards withdrew their prayer for appeal, and John E. Fitzpatrick, as receiver of the association, having been appointed by the circuit court on July 21, 1894, made himself a party to the cause and perfected the appeal. The cause was taken to the appellate court for the First district, and is brought here to reverse the decision of affirmance in that court.

The first ground upon which appellant relies for reversal here is that the circuit court had no jurisdiction over the person of the defendant association, as it was sued as a corporation, summons being issued and served upon its officers only, instead of each of the members, as should have been done, to bring a voluntary association within the jurisdiction of the court. If a court has proceeded without jurisdiction, its judgment is absolutely void for every purpose, and will be so declared in any court in which it may be presented, and that question is therefore proper to be considered here. But we think, from an examination of the record, the appellate court and the trial court were justified in finding, from the evidence, that the association was a de facto corporation, and properly served with process. The Switchmen's Mutual Aid Association of North America had an organization, consisting of directors, a president, secretary, and other officers. Its name implied a corporate body. It authenticated its acts by a common seal, and exercised corporate powers, and it is thus estopped from denying its corporate exitence. Express Co....