Henkleman v. Peterson

• Decision Date: 15 January 1895
• Citation: 40 N.E. 359,154 Ill. 419
• Parties: HENKLEMAN et al. v. PETERSON et al.
• Court: Illinois Supreme Court

154 Ill. 419

40 N.E. 359

HENKLEMAN et al.

v.PETERSON et al.¹

Supreme Court of Illinois.

Jan. 15, 1895.²

Appeal from appellate court, First district.

Bill by Henkleman, Jackson & Co., Kinsey & Callinan, and William B. Roe against John L. Peterson, Elbridge G. Keith, William A. Stanton, E. Poquet & Co., Talbot, Wilmarth & Co., James H. Gilbert, and the Brabrook Tailoring Company. Defendants obtained a decree which was affirmed by the appellate court. Complainants appeal. Reversed.

On the 31st day of December, 1890, Henkleman, Jackson & Vocke recovered a judgment against the Brabrook Tailoring Company, a corporation, for the sum of $6,640.08. Kinsey & Callinan recovered on the same date against the same defendants for the sum of $2,795.23, and William R. Roe, at same date, and against the same defendants, recovered a judgment for the sum of $8,878.42; which judgments were recovered in the circuit court of Cook county. On these judgments executions issued, and were placed in the hands of the sheriff of Cook county, who levied the same on the property of the debtor, and advertised a sale thereof. Other judgments were obtained against the same defendants by other creditors. On December 27, 1890, John L. Peterson filed his bill in the circuit court of Cook county to wind up the business of the Brabrook Tailoring Company, and to set aside certain judgments, including those named, and prevent the collection thereof; alleging they were obtained by a conspiracy betwen the officers and agents of the company and the judgment creditors, and were unlawful, as preferences over other creditors; and praying for an injunction to restrain the sheriff from paying to the execution creditors the proceeds of sale of the property. An injunction was issued as prayed for, and a bond in the sum of $500 required and given. A motion was entered to dissolve the injunction, and while it was pending the court ordered the complainants in that bill to execute an injunction bond in the sum of $5,000, which was executed by the complainant, with William A. Stanton and Elbridge G. Keith as sureties. Stanton had been the surety on the first bond. Both bonds were on printed forms, and to the signatures of the signers seals were attached. Objection being made to the terms of the latter bond as being insufficient, the court ordered a new bond to be given in the sum of $5,000, which was prepared by counsel for the defendants to that bill, and delivered to the attorney for the complainant, who procured the signatures to the same of the complainant Peterson, and also Stanton and Keith, as sureties, but each of the signers thereto omitted their seals therefrom. That bond was filed and approved by the clerk, and complainants got an order for leave to withdraw and cancel the two former bonds, which was done. The bond last executed is as follows:

‘Know all men by these presents, that we, John L. Peterson, as principal, and W. A. Stanton and Eibridge G. Keith, as sureties, all of the county of Cook, and state of Illinois, are held and firmly bound unto Frederick Henkleman, Arthur H. Jackson, and Harry S. Vocke, composing and as the firm of Henkleman, Jackson & Company; Frank Kinsey and Thomas J. Callinan, composing and as the firm of Kinsey and Callinan; Ernest Poquet and Henry Pfeiffer, composing and as the firm of Poquet & Company, William H, Talbot, Henry D. Wilmarth, Charles W. Wilkins, George P. Wheaton, and Newton Sturtevant, composing and as the firm of Talbot, Wilmarth & Company; William B. Roe, James H. Gilbert, and the Brabrook Tailoring Company,-jointly and severally, in the sum of five thousand dollars, to be paid to the said obligees above named, jointly and severally, their successors, executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves jointly and severally, and our and each of our respective heirs, executors, and administrators, firmly by these presents. Sealed with our seals and dated this eighth day of January, A. D. 1891.

‘Whereas, the above-bounden John L. Peterson has filed his bill of complaint in the circuit court of Cook county, and state of Illinois, against the above-named obligees, impleaded with other defendants therein named, praying, among other things, for an injunction to restrain the said James H. Gilbert, as sheriff of Cook county, from paying the proceeds of the sale of the property of the Brabrook Tailoring Company in satisfaction of certain writs of fieri facias on certain judgments against said company in said bill mentioned to the plaintiffs therein named; and whereas, said court heretofore allowed an injunction for that purpose, according to the prayer of said bill upon the said John L. Peterson, giving a bond in the sum of $500, with security as provided by law, and afterwards upon its being represented to the court by counsel for certain of said defendants that the bond filed herein on the issuing of said injunction was for an insufficient amount, and worthless in form, the court, in consideration of the continuance of said injunction until the hearing and determination of a motion to dissolve the same, and until the further order of the court, required the said complainant to file a new bond in the penal sum of five thousand dollars, properly conditioned, for the due protection of said obligees: Now, therefore, the condition of the above obligation is such that if the above-bounden John L. Peterson, his executors or administrators, or any of them, shall and do well and truly pay or cause to be paid to the said obligees above named, their successors, executors, administrators, or assigns, jointly and severally, all damages which have heretofore been or hereafter may be sustained by the said defendants above named, or any of them, by reason of the wrongful issuing of such injunction, and also all such costs and damages as shall be awarded against the said complainant in case the said injunction shall be dissolved, then the above obligation to be void; otherwise to be and remain in full force and virtue. John L. Peterson. W. A. Stanton. Elbridge G. Keith.

‘Sealed and delivered in presence of Samuel V. A. White.

‘Approved: Henry Best, Clerk.’

While the motion to dissolve the injunction was pending, certain of the defendants sued out an appeal to the appellate court of the First district from the order of the circuit court granting an injunction, which resulted in a reversal of the order; and subsequently a demurrer to the bill was sustained in the circuit court, and leave granted to amend the bill. Suits were brought on the instrument above set forth as an injunction bond, and demurrers interposed by Stanton and Keith, which were sustained, and by leave of court the plaintiff dismissed those suits. Certain of the judgment and execution creditors who were defendants to the bill for injunction thereupon filed in the superior court of Cook county their bill setting up the foregoing facts, and alleging the signers of the bond by mistake, oversight, and inadvertence omitted to affix their seal or scrawl, and praying a reformation of the instrument to that extent, and for relief. Defendant Peterson demurred to the bill, which was overruled, and he elected to stand by his demurrer. The defendants Stanton and Keith answered, not under oath,-that being waived,-denying most of the allegations of the bill, and averring that it was not a mistake of theirs to affix their seals to the said instrument, and that they were not paid nor received any consideration for so doing. On final hearing this bill to reform the bond by attaching the seals thereto was dismissed for want of equity, and on appeal to the appellate court that decree was...