Hofmann v. Burris
| Decision Date | 23 June 1904 |
| Citation | 71 N.E. 584,210 Ill. 587 |
| Parties | HOFMANN v. BURRIS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District.
Bill by Valentine Hofmann against James D. Burris and others. From a decree in favor of defendants, affirmed by the Appellate Court (110 Ill. App. 348), plaintiff appeals.Frank P. Blair and L. A. Gilmore, for appellant.
Lackner, Butz & Miller, for appellees.
This is a proceeding in chancery, brought in the superior court of Cook county by Valentine Hofmann, the appellant, to set Valentine Hofmann, the appellant, to set aside a judgment theretofore entered by default against him in a suit in assumpsit in said superior court wherein James D. Burris was plaintiff; also to restrain Ernest J. Magerstadt, sheriff of said county, from enforcing the collection of said judgment under an execution theretofore issued to him, and praying that said judgment be reopened and a new trial granted in the suit at law, with leave to Hofmann to plead and defend therein. James D. Burris, J. G. Meek, and Ernest J. Magerstadt, sheriff of Cook county, were made defendants to the bill. The defendants demurred, but later withdrew the demurrer and answered, and the complainant replied to the answers. The cause was then referred to the master in chancery to take the evidence and report his conclusions thereon.
On August 15, 1895, James D. Burris and Valentine Hofmann entered into a written contract, by which Burris agreed to sell and Hofmann agreed to purchase certain lots in the city of Chicago for $25,000. The contract recited that Hofmann had paid $300 of the purchase money, and by its terms Hofmann further agreed to pay the sum of $9,700 within five days after the title was found good and a warranty deed was ready for delivery, and to give a note for $2,000 with Alves Hofmann as surety; also to pay the balance, $13,000, in three equal installments, due, respectively, one, two, and three years from the time of the delivery of the deed; and to deliver to Burris 260 shares of stock of the Brewer & Hofmann Brewing Company, of the par value of $26,000, to be held by him as collateral security for the payment of the $13,000. The $9,700 was paid to Burris, and three notes, aggregating $2,000, one being for $500, were delivered to him, as was also a certificate for 260 shares of the brewery stock standing in the name of Valentine Hofmann. Burris held the legal title to these lots only for the purpose of securing an indebtedness for $10,500 due him from J. G. Meek, who was the equitable owner, and Burris retained the $10,000 paid in cash and the note for $500, and indorsed the other two notes over to Meek, and also delivered to him the contract and the certificate of stock as collateral for the $13,000 still due under the contract. The three notes were subsequently paid by Hofmann.
On April 20, 1898, a suit in assumpsit was brought in the superior court of Cook county in the name of James D. Burris, as plaintiff, against Valentine Hofmann. The declaration, filed May 27, 1898, consisted of the common counts, and damages were laid at $20,000. Hofmann was duly served with summons to appear at the May term of said court. On June 14, 1898, no plea or demurrer having been filed to the declaration, a default was taken against Hofmann, and a judgment entered in said suit for $14,935 being the amount, with interest, which was secured by the brewery stock. On June 16, 1898, Hofmann, by his attorneys, moved the court to set aside said judgment, and filed affidavits in support of such motion to show that attorneys had been retained by Hofmann, as soon as he was served with summons, to defend said suit; that one of these attorneys had examined the files in said suit on May 1 and again on June 1, 1898, to ascertain whether a declaration had been filed therein, and also examined the clerk's register on each of those dates for a notation of the filing of such declaration, but that there was no declaration among the files in the cause, or any entry on the clerk's register of the filing thereof on either of said dates last mentioned. Hofmann made an affidavit to the effect that he was not indebted to Burris in any sum; that the obligation, if any, is to Meek, and that before Meek has any claim on deponent he should return said stock; and that the only claim that can be made upon him on account of the indebtedness mentioned in said contract must be with the holder of the stock, and that Burris did not have possession thereof when the suit was begun. The court, after considering the motion and affidavits, overruled the motion, and Hofmann thereupon prayed an appeal to the Appellate Court for the First District, which appeal, however, was never perfected. Afterwards execution was issued upon such judgment, and placed in the hands of Magerstadt, the sheriff of Cook county, for service.
On February 14, 1899, the bill in this cause was filed. The reasons given in the bill and attempted to be proved as a basis for relief are the same as those insisted upon before the court of law in support of the motion to set aside the judgment and grant a new trial thereon, except that in this proceeding complainant sought to prove that after the execution of the contract Meek had accepted the $26,000 of brewery stock in satisfaction of the $13,000, and the defense that Meek should return the stock before bringing suit is not presented. The master, however, finds that there was no agreement to cancel the contract, or to accept the stock in satisfaction of the $13,000, and that, therefore, Hofmann has not shown in this cause that he has any defense to the suit at law upon which judgment has been entered, and that, even if Hofmann's defense, which he attempted to show in this cause, had been established, still he was guilty of negligence and laches in not presenting such defense in his affidavit filed in support of his motion to set aside the judgment in the court of law; that the matters set out in the affidavit of Hofmann, filed in support of said motion, do not show a good defense, and that the court decided correctly in overruling said motion. The master also finds that a declaration was duly filed in the suit at law on May 27, 1898, and that the...
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