Hillmer v. Chicago Bank of Commerce

• Court: Illinois Supreme Court
• Writing for the Court: MURPHY
• Citation: Hillmer v. Chicago Bank of Commerce, 378 Ill. 449, 38 N.E.2d 751 (Ill. 1942)
• Decision Date: 14 January 1942
• Docket Number: No. 26167.,26167.
• Parties: HILLMER v. CHICAGO BANK OF COMMERCE et al.

378 Ill. 449

38 N.E.2d 751

HILLMER

v.CHICAGO BANK OF COMMERCE et al.

No. 26167.

Supreme Court of Illinois.

Nov. 18, 1941.

Rehearing Denied Jan. 14, 1942.

Appeal from the Superior Court, Cook County; Charles A. Williams, judge.

Suit by Armin F. Hillmer against the Chicago Bank of Commerce, Harley L. Clarke and others, to enforce the constitutional liability of stockholders of defendant bank. From an order confirming the report of a master, over exceptions, and directing receiver to accept a specified sum in full settlement of the decretal liability of defendant last named, plaintiff appeals. On motion of defendant last named to dismiss the appeal.

Motion denied and cause transferred to the Appellate Court.Leonard & Leonard, Owens & Owens, and John A. Russell, all of Chicago (Edmund G. Pabst, of Chicago, of counsel), for appellant.

Rosenberg, Stein & Rosenberg, of Chicago (Merwin S. Rosenberg, of Chicago, of counsel), for appellee.

MURPHY, Chief Justice.

This is a direct appeal from an order of the superior court of Cook county entered in a consolidated suit prosecuted for the purpose of enforcing the constitutional liability of the stockholders of the Chicago Bank of Commerce. Appellee filed a motion to dismiss the appeal which was taken with the case and since it presents a jurisdictional question it will be given first consideration.

Appellant claims that part of section 11 of the Banking Act (Ill.Rev.Stat.1941, chap. 16 1/2, par. 11) which provides: ‘Said receiver shall have authority upon the order of the court appointing him to employ such auditors and assistants as may be necessary to establish and recover the liabilities of the stockholders, and may, with the approval of the court enter into compositions with insolvent stockholders, if any,’ under which the proceeding was conducted, is unconstitutional. In support of his motion to dismiss appellee claims the constitutional question was not presented or passed upon by the trial court.

The facts necessary to be considered in connection with said motion are as follows: Appellee, Harley L. Clarke, was a stockholder in said bank and on September 17, 1938, a decree was entered fixing his liability at $276,621,44. On May 16, 1940, he filed a petition in which he alleged facts pertaining to the value of his assets and the amount of his indebtedness which, if proved, would show him to be wholly insolvent. He represented he was endeavoring to compromise his indebtedness with his creditors, and in settlement of the stockholder's liability judgment he offered to pay $5,000 for a complete release and satisfaction of the same. He prayed for a hearing, that he be declared insolvent and that his offer of compromise and settlement be accepted. Two answers were filed to the petition, one by a group of creditors headed by the appellant, Armin F. Hillmer, the other by a group of creditors headed by Manuel Vega. Each of the answers traversed the allegations of fact but raised no constitutional questions. The matter was referred to a master in chancery to take the evidence and state conclusions of fact. After the taking of considerable evidence the master made his findings of fact to which appellant filed ten objections. On the hearing they were ordered to stand as exceptions. The record discloses that these objections were argued to the court and on October 18 Clarke gave notice to attorneys for appellant that on October 22 ‘he would ask for an entry of an order in accordance with the oral decisions heretofore rendered’ and on the latter date the order was entered which overruled exceptions, confirmed the report, found Clarke to be insolvent and that his offer of $5,000 was fair and reasonable and should be accepted.

The order directed that the receiver be ‘and is hereby authorized and directed to accept the said sum of $5,000 in cash in full and complete settlement and satisfaction of the aforementioned decretal liability * * * that upon receipt of said sum of $5,000 said J. A. Whalen, receiver, issue his satisfaction in full of said aforementioned decretal liability.’ In December, 1940, Clarke moved for an order of court to require the receiver to comply with the order of October 22. On January 16, 1941, an order was entered on said motion which found that Clarke had tendered to the receiver the $5,000 referred to in the order of October 22 and that the receiver...