Funk v. Kempton

• Decision Date: 18 June 1908
• Citation: 235 Ill. 280,85 N.E. 218
• Parties: FUNK v. KEMPTON et al.
• Court: Illinois Supreme Court

235 Ill. 280

85 N.E. 218

FUNK

v.KEMPTON et al.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Livingston County; S. L. Dwight, Judge.

Proceedings by John Funk, as surviving partner of a firm composed of himself and P. S. Kempton, deceased, in connection with the administration of decedent's estate. Funk filed a report showing a certain amount due upon an accounting between the partners, and Frank Kempton and others, whose claims against the estate of decedent had been allowed by the county court, filed objections, claiming that the surviving partner ought to be postponed to other creditors of decedent. The court added an extra charge against Funk of interest on the partnership assets, approved the report as modfied, and gave the creditors precedence over Funk's claim. On appeal to the Appellate Court for the Second District (123 Ill. App. 100), the judgment was reversed as to the charge for interest, but otherwise affirmed, and Funk appeals. Dismissed.Chase Fowler, for appellant.

White & Tuesburg and A. C. Norton, for appellees.

CARTWRIGHT, C. J.

The nature of this case and the subject of the controversy between the parties were explained when a former appeal from a judgment of the Appellate Court for the Second District was dismissed. Funk v. Kempton, 221 Ill. 436, 77 N. E. 683. That court in allowing the appeal had recited that the amount involved exceeded $1,000 exclusive of costs, but we were unable to find facts or figures in the record supporting that recital. It was stated in the opinion that the amount of appellant's claim was only $770, and, even if it were allowable to add interest, the amount involved would still be less than $1,000. It was clear, however, that the judgment of the Appellate Court was not final or appealable, and the dismissal was therefore placed upon that ground. The cause was reinstated in the circuit court of Livingston county, and that court ordered appellant to file a report in accordance with the opinion of the Appellate Court. He filed such a report under protest, and the court approved it, except that the appellant was required to make an additional charge against himself of interest at 5 per cent. on $3,613.69, the balance of partnership assets, from March 11, 1903, to April 16, 1907, amounting to $739.78. From the final judgment of the circuit court appellant removed the cause a second time by appeal to the Appellate Court for the Second District, where...