Gauler v. Wohlers

• Court: Appellate Court of Illinois
• Writing for the Court: MCALLISTER, J.
• Citation: Gauler v. Wohlers, 12 Ill.App. 594, 12 Bradw. 594 (Ill. App. 1883)
• Decision Date: 31 March 1883
• Parties: HENRY GAULER ET AL.v.ANNA WOHLERS.

12 Ill.App. 594

12 Bradw. 594

HENRY GAULER ET AL.

v.ANNA WOHLERS.

Appellate Court of Illinois, First District.

March Term, 1883.

OPINION TEXT STARTS HERE

ERROR to the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding. Opinion filed March 27, 1883.

This case arises upon five several creditor's bills brought in the court below by Anna Wohlers, who, with four others were next of kin of one Henry Wohlers, deceased, and who had severally recovered judgments at law, against August Wohlers, Reinhard Hageman and Henry Gauler, upon the bond of said August Wohlers, who had been appointed administrator of the estate of said Henry Wohlers, deceased, Hageman and Gauler being his sureties upon the bond, and the several judgments being for the default and breach of duty of said August, as such administrator. The several bills set out a judgment, and the issuance and return nulla bona of an execution thereon. They were framed in the usual form to reach choses in action, equitable interests in real and personal property. They severally set forth fraudulent conveyances of real estate by Hageman and Gauler, with intent to defraud these several complainants. Hageman and Gauler, their wives and others were made defendants, and answered separately. The answers did not admit the return nulla bona, of the executions, but on the contrary denied the issuance and return nulla bona of such executions. Replications to answers being filed, the court by consent of parties, ordered the several cases to be consolidated as one. On the hearing, the complainants introduced in evidence executions which had been issued upon the respective judgments, and the returns of the sheriff. As to three of them the return was that of demand of property, refusal, and nulla bona, and made before the filing of the bill. As to two others, there was indorsed on each respectively, a levy upon a very considerable amount of personal property, which the sheriff states in his return was taken from him by the coroner by virtue of writs of replevin; and the return further states that by order of the plaintiff's attorney he returns the writ in no part satisfied. Evidence was given upon the question of fraudulent conveyace by Hageman and Gauler of their real estate.

The court below found that such conveyances were fraudulent as to complainants; found the gross amount due to be the full face of all the judgments, interests and costs, and ordered that if defendants did not pay such gross amount in three days, that then said real estate be sold to pay the same.

There was no evidence tending to show the fact that said goods and chattels so levied upon were in fact replevied, or by whom, what bond was given, or what was done with the replevin suits; nor was there any evidence as to the value of the goods levied upon. Without any explanation, the several judgments on which the execution so levied, were issued, were reckoned in at their full nominal amounts.

It appears that Hageman and Gauler had filed a cross-bill to have said judgments at law set aside on the ground that they were sureties for August Wohlers on his bond as administrator, and that he had fraudulently made himself liable as such administrator, with the design of making his sureties also liable, and had kept them in ignorance of his doings. There was no allegation, that complainants in the creditor's bills or either of them, were in complicity with that design. To this cross-bill the court below sustained a demurrer. The defendants bring the case here on error.

Messrs. HOYNE, HORTON & HOYNE, and Mr. FRANCIS LACKNER and Mr. SIDNEY C. EASTMAN, for plaintiffs in error; that the cross-bill and amended answers present a good defense in equity to the judgments, and it was error to sustain the demurrer to the cross-bill and the exceptions to the answers, cited Gillilan v. Myers, 31 Ill. 525; Judy v. Kelley, 11 Ill. 211; Follansbee v. Scottish Am. Mort. Co. 7 Bradwell, 486; Propst v. Meadows, 13 Ill. 157; McGhee v. Gold, 68 Ill. 215; Vennum v. Davis, 35 Ill. 568.

To sustain a creditor's bill it must appear that a judgment has been rendered and execution returned nulla bona: Bay v. Cook, 31 Ill. 336; Lewis v. Lanphere, 79 Ill. 187; Moshier v. Meek, 80 Ill. 79.

When the decree is not based upon evidence sufficient to support it, it must be reversed: Olsen v. Crescio, 10 Bradwell, 542.

Mr. WILLIAM VOCKE, for defendant in error; that the bills are of a character which would have rendered them proper subjects of chancery jurisdiction, even if, after judgment, no execution whatever had been issued, cited Miller v. Davidson, 3 Gilm. 518; Greenway v. Thomas, 14 Ill. 271; Weightman v. Hatch, 17 Ill. 281; Newman v. Willets, 52 Ill. 98.

Where a wife permits her husband to intermingle her estate with his, and obtain credit upon it, she is estopped from asserting her claim as against her husband's creditors: Nelson v. Smith, 64 Ill. 394; Jassoy v. Delius, 65 Ill. 469.

The execution of an administration bond creates a present indebtedness to the obligee so as to render a voluntary conveyance by the surety fraudulent and void: Carlisle v. Rich, 8 N. H. 45; Howe v. Ward, 4 Greenl. 195; Van Wyck v. Seward, 18 Wend. 375; Thompson v. Thompson, 19 Me. 244; Choteau v. Jones, 11 Ill. 300.

As to when a court of equity will relieve a judgment at law: Walker v. Kretzinger, 48 Ill. 502; Willard's Eq. Jur. 356; Floyd v. Jayne, 6 Johns. Ch. 479; Wilday v. McConnell, 63 Ill. 278; Vaughn v. Johnson, 1 Stockt. Ch. 173; Powell v. Watson, 6 Ired. Eq. 96; Dodge v. Strong, 2 Johns. Ch. 228; Lansing v. Eddy, 1 Johns. Ch. 50; Mason v. Palmerston, 2 Carter (Ind.), 117; Murriott v. Hampton, 7 Tenn. 269; Young v. Keightly, 16 Ves. 349.

A public officer making a return of his doings upon a writ, is not allowed to gainsay the truth of it: Barrett v. Copeland, 18 Vt. 67; Hoyne v. Small, 22 Me. 14; Sheldon v. Payne, 3 Seld. 453; Cave v. Mills, 7 Hurls. & Norm. 913; Com'rs v. Mayrant, 2 Brevard, 228; McCabe v. Raney, 32 Ind. 309; Stovall v. Banks, 10 Wall. 583; Baker v. Preston, 1 Gilmer (Va.), 235; U. S. v. Gerault, 11 How. 27; Morley v. Metamora, 78 Ill. 394; Evans v. Kieland, 9 Ala. 42.

In order to discharge a surety there must have been fraudulent concealment as to material facts of which the obligee had notice: Ladd v. Trustees, 80 Ill. 235; West. N. Y. Life Ins. Co. v. Clinton, 66 N. Y. 331; Gage v. The City, 95 Ill. 611.

What appears in this bill with reference to execution and return was immaterial and surplusage: Weightman v. Hatch, 17 Ill. 281; Miller v. Davidson, 3 Gilm. 518; Greenway v. Thomas, 14 Ill. 271; Newman v. Willetts, 52 Ill. 98.

It is the doctrine in courts of equity that the rendition of a judgment and the consequent lien thereof on lands will authorize a creditor to come into those courts to remove fraudulent obstructions to executions: Bump on Fraudulent Conveyances, 2d ed. § 523; Freeman on Executions, § 430; Brinkerhott v. Brown, 4 Johns. Ch. 671.

MCALLISTER, J.

The cross-bill of Hageman and Gauler, praying that the judgments on which the creditor's bills were based be set aside and vacated, was, in our judgment, wholly insufficient to justify any such decree, and the court below very properly sustained a demurrer to it. The chief defect in that bill was the want of any allegation, or statement of fact, or circumstance, showing that the complainants in the creditor's bills, or some of them, participated...