Frederick v. Maggio
| Decision Date | 10 November 1959 |
| Docket Number | Gen. No. 47759 |
| Parties | James FREDERICK and Michael Frederick, Plaintiffs-Appellants, v. Alex J. MAGGIO, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Freeman & Freeman, Chicago, Barry J. Freeman, and Earl Freeman, Chicago, of counsel, for appellants.
Brundage & Short, Chicago, Narcisse A. Brown, Donald E. Casey, Chicago, of counsel, for appellee.
This is an action in equity for reformation of four promissory notes. The trial court dismissed the complaint on defendant's motion and plaintiffs have appealed.
The motion to dismiss admits the well-pleaded facts in the complaint and the statements in the accompanying affidavits. Plaintiffs are officers of the McAvoy Brewing Company. Between the dates of September 8 and October 8, 1948, as president and secretary of the company, they negotiated four loans with defendant and gave defendant four promissory notes. Three of the notes are signed by plaintiff Michael Frederick, and one by plaintiff James Frederick immediately under the typewritten name of the company.
The notes give no indication that plaintiffs were signing as officers of the company. On July 17, 1958, judgments by confession were entered for defendant on the notes against plaintiffs and the company. Plaintiffs, on September 9, 1958, brought this action in equity to reform the notes by adding the words 'as Secretary' to three notes, and 'as President' to the fourth after the signatures.
The Chancellor dismissed the suit on the ground that plaintiffs had an adequate remedy at law under section 72 of Rule One of the Municipal Court Rules. The question is whether section 72 gives plaintiffs an adequate remedy and precludes them from an action in equity for reformation.
Plaintiffs contend that reformation is exclusively an equitable action beyond the jurisdiction of the Municipal Court of Chicago, and that it would be absurd to hold, therefore, that an adequate remedy lies in that court. They maintain that any attempt by them to prove at law that they signed the notes in a representative capacity would be met by the parol evidence rule since no ambiguity appears on the face of the notes. Conaghan v. Estes, 16 Ill.App.2d 373, 148 N.E.2d 8; see also Ch. 98, Sec. 40 (Ill.Rev.Stat.1957). They contend that a suit in equity for reformation is the only method of circumventing the parol evidence rule. Gawne v. O'Connell, 287 Ill.App. 73, 4 N.E.2d 501.
The Municipal Court rule is substantially identical with section 72 of the Civil Practice Act, Ill.Rev.Stat.1957, c. 110, § 72, and therefore the construction of this Act is controlling. Cf. Ch. 37, Sec. 376 (Ill.Rev.Stat.1957). Prior to the 1955 amendment, section 72 abolished the writ of coram nobis only, and substituted in lieu of this writ a statutory motion.
In 1952, the Supreme Court was called upon to construe the scope of this section in Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350, 353. The original proceeding in the Ellman suit was brought in the County Court of Cook County whose jurisdiction, like that of the Municipal Court, does not include general equitable powers. A default judgment was entered against De Ruiter and after 30 days he moved to vacate under section 72. The County Court allowed the motion and Ellman appealed. This court reversed the order of the County Court. The Supreme Court noted that the use of the motion had not been 'restricted to the narrow confines of its common-law antecedent,' but that it had been gradually enlarged to include fraud, excusable mistake, and other like circumstances. The court then reversed the Appellate Court judgment on grounds not formerly recognized at law, namely, the wilful concealment of the entry of the judgment by the plaintiffs' counsel for more than 30 days so that the court lost the ordinary power to vacate. In its opinion the court expressly stated that there was a 'fusion [of law and equity] sufficient to enable a court of law, when the occasion demands it, to apply equitable principles in administering the summary relief under [section 72].' 412 Ill. at page 292, 106 N.E.2d at page 353.
The court also noted with approval Nikola v. Campus Towers Apartment Bldg. Corp., 303 Ill.App. 516, 25 N.E.2d 582, where an order of the Circuit Court of Cook County, granting a motion under section 72, was affirmed by this court on the sole ground of procedural convenience in refusing to require the defendant to file a complaint in equity and return a few days later when the relief would be granted. This, despite the fact that the traditional method of relief was a suit in chancery.
In 1955, the legislature amended section 72. Subsection (1) of that section combines into a single petition the various post-judgment and decree remedies formerly available in civil cases. That subsection provides (Emphasis added.)
The joint Committee Comments state that the new section 72 will 'result in uniformity and in the elimination of obsolete distinctions and forms of action, and will codify the Supreme Court's decision in Ellman v. De Ruiter, supra, that equitable principles should apply in the administration of all post-judgment remedies.' (Emphasis added.) The Historical and Practice Notes, written by some of the drafters of the new section 72, includes the statement that 'all relief from the effect of judgment otherwise obtainable, can now be availed of...
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