Heinroth v. Griffin

• Decision Date: 22 December 1909
• Parties: HEINROTH et al. v. GRIFFIN, Sheriff, et al.
• Court: Illinois Supreme Court

242 Ill. 610

90 N.E. 199

HEINROTH et al.

v.GRIFFIN, Sheriff, et al.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Lake County; Charles H. Donnelly, Judge.

Petition by Luella Heinroth and another against Elvin J. Griffin, as sheriff, and others, for a writ of mandamus. From a judgment of the Appellate Court, affirming a judgment dismissing the petition, petitioners appeal. Affirmed.Leslie A. Needham and Stearns & Field, for appellants.

Elvin J. Griffin, pro se.

Holland Elliott and Arthur J. Mullen, for other appellees.

This was a petition filed in the circuit court of Lake county by Luella Heinroth and Fred C. Tiedt against Elvin J. Griffin, as sheriff of said county, for a writ of mandamus to coerce him, as such sheriff, to sell certain real estate situated in his county upon an alias execution in his hands, issued August 24, 1903, upon a judgment in favor of the Illinois Brick Company and against the Winthrop Harbor & Dock Company, under which execution a redemption of said real estate had been made on September 7, 1903, from a prior sale of said real estate to Lawrence C. Moore on an execution issued upon a judgment in favor of Caroline Roth against the Winthrop Harbor & Dock Company. The petition was amended by making new parties. An answer was filed, and a demurrer was interposed to the answer. The demurrer was overruled, and, the petitioners having stood by their demurrer, the petition was dismissed. The judgment dismissing the petition has been affirmed by the Appellate Court for the Second District, and the petitioners have brought the record to this court by appeal for further review.

The following statement, preceding the opinion filed by the Appellate Court, from an examination of the record, we find to be correct, and it will be adopted by this court as a statement of the facts disclosed by the record:

‘The petition set out at great length that the harbor company acquired title to this real estate, and mortgaged the same, and defaulted, and that William Jones became the holder of the notes secured by the mortgage, and filed a bill to foreclose against the harbor company and the Illinois Brick Company and others; a final decree of foreclosure; the sale of the premises to William Jones, and the issue of a certificate of purchase to him; that Caroline Roth recovered a judgment against the harbor company in the superior court of Cook county, and filed a transcript thereof in Lake county, and had an execution thereon to the sheriff of Lake county, which was levied on said real estate, and that Caroline Roth paid to the sheriff $12,330.35 to redeem from said foreclosure sale on August 13, 1903, and the sheriff executed a certificate of redemption to Caroline Roth and filed the same for record; that the sheriff then, under said execution in favor of Caroline Roth, sold said real estate on September 5, 1903, to Lawrence C. Moore for $24,000, and a certificate of purchase was issued to him, and filed for record; that on March 20, 1901, the Illinois Brick Company recovered a judgment against the harbor company in the circuit court of Cook county for $275.83, and filed a transcript thereof in Lake county; that said judgment was assigned in writing to William D. Cravens, and by him to H. Martin, which assignments were recorded in Lake county on September 7, 1903, and that on August 24, 1903, an alias execution was issued on said transcript to the sheriff of Lake county, and placed in the hands of the sheriff. The petition further stated that certain persons were desirous of acquiring title to said land, and secured the co-operation of the said H. Martin, then the owner of said judgment, and contemplated redeeming the premises from said sale under the execution of Caroline Roth and the purchase by said Moore, but did not have sufficient money, and that their attorney, F. H. Novak, on September 7, 1903, requested and received from Luella Heinroth $2,200 and from Tiedt $5,200, which, with other moneys, were to be sued by Novak in redeeming from the sale to Moore, and which moneys were to be secured in this manner: Martin was to assign to Novak, as trustee, said judgment of the Illinois Brick Company, and all his rights in said alias execution then in the hands of said sheriff, and all his right in the redemption moneys to be paid in the name of Martin in making redemption from said sale to Moore, and also an assignment in blank of the certificate of redemption to be issued to Martin, and Novak was to hold these assignments as security for petitioners till the sheriff sold the real estate under said alias execution, and that petitioners should be repaid out of the proceeds thereof, and, if Martin obtained title...