Ford v. First Nat. Bank of Stuart, Iowa

• Decision Date: 18 February 1903
• Citation: 66 N.E. 316,201 Ill. 120
• Parties: FORD et al. v. FIRST NAT. BANK OF STUART, IOWA.
• Court: Illinois Supreme Court

201 Ill. 120

66 N.E. 316

FORD et al.

v.FIRST NAT. BANK OF STUART, IOWA.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from appellate court, First district; Charles Blanchard, Judge.

Proceeding by the First National Bank of Stuart, Iowa, against Marietta C. Ford and others, for the reclassification of defendants' claims against the estate of Eugene C. Bates, deceased. From a judgment of the county court refusing to reclassify the claims, which was reversed by the circuit court on appeal, which reversal was affirmed by the appellate court (100 Ill. App. 70), defendants appeal. Reversed.

Cartwright and Hand, JJ., dissenting.Herbert J. Davis and Watts A. Johnson, for appellants.

Geo. S. Skinner, for appellee.

This appeal is from a judgment of the appellate court affirming the judgment of the circuit court of Bureau county in a matter pending in that court on appeal by the First National Bank of Stuart, Iowa, from the county court of said county. The appellants in this court had claims against the estate of Eugene C. Bates, which was being administered in the county court of Bureau county, said claims having been allowed and classified by the county court as sixth-class claims. The appellee in this court, the First National Bank of Stuart, Iowa, filed a petition in the county court alleging that it was a creditor of the estate of Eugene C. Bates, and that its demand was allowed and probated as of the seventh class. The petition prayed that the claims of the appellants should be reclassified as seventh-class claims. This petition of appellee to have the claims reclassified was filed more than a year after all the above claims had been allowed and classified, excepting the claim of Elizabeth F. Hollis, and eleven months after her claim had been allowed and classified. Prior to the filing of the petition to reclassify, the executor had paid all of the fifth-class claims and had paid 50 per cent. of the sixth-class claims, including those of appellants. On a hearing in the county court upon said petition the county court refused to reclassify appellants' claims, and from the order refusing such reclassification the appellee herein appealed to the circuit court. Upon the hearing of such appeal the circuit court reversed the order of the county court, and proceeded to adjudge that appellants' claims should be reclassified, and should stand classed as seventh-class claims. From that judgment these appellants appealed to the appellate court, which affirmed the judgment of the circuit court, and this appeal is taken to reverse the said judgments of the appellate and circuit courts.

The ground upon which appellee relied for asking a reclassification was that the claims of appellants were not for moneys received by the decedent in trust for any purpose, within the meaning of paragraph 70 of the administration act. The facts are not in dispute, and, being substantially the same as to each claim, were stipulated by the parties in the circuit court. The stipulation, among other things, states that appellants placed certain moneys in the hands of Bates to have him invest the same for them in real-estate securities, and keep the same so invested in their names; that the moneys were so invested by Bates, and reports were made by him to appellants from time to time, purporting to be a list of the notes and securities in his hands belonging to them; that after the death of Bates it was discovered that the reports were partially false, and that a portion of the moneys had been misapplied and used by Bates for his own private purpose, and mingled with his own funds, and that the identity of the moneys became lost; that appellants relied exclusively on his representations concerning the character and sufficiency of their securities and details of their several investments; that after his death the notes and securities standing in the name of appellants and found among his effects were delivered to them by the executor, and that their claims in controversy represented the difference between the securities delivered by the executor and the amounts that should have been in the hands of Bates belonging to them; that the notes and securities taken by Bates were subject to their control and deliverable on call.

RICKS, J. (after stating the facts).

Appellants insist that the circuit court erred in entertaining jurisdiction of the appeal from the county court, because the transcript from the county court does not show that appellee ever had a claim allowed against the estate of Bates, or that it was in any manner interested in the settlement of said estate, and because Cairo A. Trimble, executor of the will of Bates, was not made a party to the appeal, and that it was beyond the power of the county court to set aside the former order and reclassify appellants' claims after the term at which the claims of appellants were allowed and classified. It appears, however, from the petition filed by appellee, which petition was sworn to by the attorney for appellee, that the claim of appellee, amounting to $5,117.11, was allowed by the probate court under date of February 20, 1899, and classified as of the seventh class. It was stipulated by the parties that this might be considered in evidence in this case. We think the record, therefore, fairly discloses that appellee was a creditor of the estate.

The contention that the court did not have jurisdiction of the case and that the executor was not a party to the bill is insisted upon. This contention is based on the fact that, when the bond was filed in the county court to take the case to the circuit court, Trimble, executor, was not mentioned as an obligee in the bond, and it is insisted, therefore, that he was not a party to the appeal. The record discloses that Trimble was notified of the petition and when the same would be heard by the county court. It also appears from the order of the court refusing reclassification of the claim that Trimble, as such executor, was present in the county court. Section 68 of chapter 3 of the Revised Statutes provides that either party may take an appeal in the allowance or rejection of claims by the county court, in the same time and manner as appeals are now taken from justices of the peace to the circuit court, and we have held in Hayward v. Ramsey, 74 Ill. 372, that parties are bound to follow their case to the circuit court, where an appeal is perfected before the justice, without any further notice. The record showing that Trimble, executor, was a party to the proceedingsin the county court, he was bound to take notice of the appeal to the circuit court, and if he had done so and followed the case, and timely made his motion to have to appeal dismissed for want of a sufficient bond, it would have been the duty of the court to have dismissed the bill, unless appellee, who was appellant there, had by leave of court filed a proper bond. There was a bond given in proper form and in the amount required by the court, and the omission of the name of the executor, Trimble, as one of the obligees, was but an imperfection or defect that could have, and doubtless would have, been cured had the proper steps been taken. After the case had been decided in the circuit court and taken to the appellate court by appeal it was too late to urge this point. Although the name of the executor, Trimble, was not mentioned in the bond, he was nevertheless a party to the appeal, and could have appeared in person or by attorney and made such defense as he had. The bond was only to cover costs, and if he...