Hurd v. Goodrich

• Decision Date: 30 September 1871
• Citation: 59 Ill. 450,1871 WL 8063
• Parties: HARVEY B. HURDv.GRANT GOODRICH.
• Court: Illinois Supreme Court

59 Ill. 450

1871 WL 8063 (Ill.)

HARVEY B. HURD

v.GRANT GOODRICH.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

On the 18th day of December, 1866, Goodrich exhibited in the Superior Court of Chicago, his bill in chancery, against Hurd, alleging, in substance, that, on the 17th day of June, 1853, Hurd executed, under his hand and seal, and delivered to Goodrich, a certain declaration of trust, whereby Hurd declared that, on the 7th day of January, 1852, he purchased at administrator's sale, at public auction, certain real estate, describing it (being, in all, two hundred and forty acres), one half of the purchase money being paid down, and a bond and mortgage executed for the balance payable in six months, and therein and thereby acknowledged and declared that he held said premises in trust as follows: One undivided half of said premises in trust for the benefit, use and behoof of Goodrich, his heirs and assigns; the remaining undivided half for the benefit and behoof of Brown & Hurd, comprising the firm of Andrew J. Brown and Harvey B. Hurd, the respective parties paying their proportion of the purchase money, and with the further understanding that Hurd might sell said lands or the timber thereon, according to his best judgment, he accounting to the respective parties in interest, or their legal representatives, for their proportionate shares of the money realized from such sales made by him, the balance of one-half unsold to be conveyed to Goodrich on request.The bill alleges the payment of a blank sum on and toward his share of the purchase money; that Hurd, in pursuance of the trust, proceeded to sub-divide the land into parcels and offer it for sale; that a large share thereof was timbered land of great value; that Hurd, from time to time, sold timber off of portions of it for large sums of money, without sale of the fee, but to whom, when and in what quantities, and for what price, complainant was not informed; and sold different and separate parcels of the land to various persons for large sums of money; that he had received, from time to time, large sums of money and interest, etc., but to whom, when, in what quantities, and for what price, complainant was not informed, nor as to what part remained unsold; that Hurd failed to pay over to complainant the share belonging to him, but mingled the same with his own money, and laid out the same in the purchase of other lands and lots on which he made large profits and gains; that, during all the time he was receiving moneys from the sale of the timber and lands, he was engaged in buying and selling lands, and complainant's share thereof was mingled with the money with which such purchases were made, on and through which Hurd, as such trustee, made large profits and gains; that, during all the time money was sought for upon loans, could have been readily loaned upon undoubted security, for interest at the rate of ten per cent per annum, payable annually or semi-annually.

Alleges that Hurd had accounted to, and settled with Brown; alleges that complainant made a demand upon him, in 1854, to account and pay over, and repeatedly since.Bill called for answer upon oath, and prayed for discovery and an account, special and general relief.

On the 20th December, 1866, Hurd entered his appearance in the cause.Afterwards, and on the 14th of March, 1867, Goodrich, by leave of court, amended his bill; and on the 1st day of July caused a summons to be issued to Hurd to appear and answer, which was returned personally served on the 11th of July, 1867.

On the 17th of October, 1867, complainant took a rule upon Hurd, to plead, answer or demur to the amended bill, on or before the following Monday morning.He not having complied, on the 28th of October, 1867, a rule was obtained, requiring him to show cause why an attachment should not issue.On the 25th day of October, 1869, complainant, by leave of court, again amended his bill by striking out the call for answer upon oath, and expressly waiving the same; and on the 8th of December, 1869, took another rule upon Hurd, to plead, answer or demur to the amended bill within twenty days; and on the 29th of March, 1870, Hurd's default and a decree pro confesso were entered, and the cause referred to the master to take proofs, state and report account as prayed in the bill.Upon notice to Hurd, the parties appeared before the master and proofs were taken.On the 29th day of March, 1871, the master filed his report in the cause, stating the account between the parties, with the proofs and exhibits adduced before him, the result of which was, that Hurd was then indebted to Goodrich in the sum of $5940.02.

On the same day of filing the master's report, a rule was taken, requiring Hurd to show cause, if any he had, by the next Monday morning, why the master's report should not be confirmed.

No exceptions having been taken to the master's report, at the April term, 1871, the court made and entered a final decree, confirming the master's report, and decreeing the payment of the amount thereby found due as above stated.

At the May term, 1871, Hurd made a motion, based upon affidavits, and as to which there were counter affidavits, to set aside the decree of the April term, which was overruled by the court.The matters were preserved in the record and the cause brought to this court by writ of error.

Mr. JOHN A. HUNTER, for the plaintiff in error.

Mr. SIDNEY SMITH, for the defendant in error.

Mr. JUSTICE MCALLISTERdelivered the opinion of the Court:

We have examined the record in this case, and the several points made by plaintiff in error, for reversal, with all the care which the importance of the case, in respect to the amount and principles involved, seemed to demand; and we are satisfied that no one of the points made is tenable, and that, under the circumstances of the case, plaintiff in error has no just cause to complain of the action of the court below in any respect.The bill of complainant sets forth, with clearness and certainty, facts sufficient to constitute a case for relief under the most familiar head of equity jurisprudence.The complainant, by calling for a discovery and answer under oath, gave plaintiff in error an opportunity of being a witness in his own behalf in respect to matters peculiarly within his own knowledge, and as to which, from the long lapse of time and the nature of the transactions, it would have been very difficult for complainant to have adduced much, if any, opposing evidence.The bill was filed on the 16th of December, 1866.On the 26th of the same month, plaintiff in error entered his appearance in the cause.The bill was then amended, and on the 1st day of July a summons was issued, which was duly served on the 11th of the same month, for the next August term.Then, although there was a term of the court commencing on the first Monday of every month, no rule was taken upon him to answer until the October term, 1867.The rule was taken on the 7th of that month, and no attention being paid to it, on the 28th of the same month a rule was taken upon him to show cause, by a certain day, why he should not be attached for contempt.Still he did not answer.Then, upon the 25th of October, 1869, complainant, having obtained leave of the court for that purpose, struck out that part of the bill requiring an answer upon oath, and substituted the usual waiver of the oath, and on the 8th of December, 1869, took still another rule upon plaintiff in error, to plead, answer or demur to the amended bill within twenty days.Then, waiting until the 29th of March, 1870, and no steps having been taken to defend the suit, the default of plaintiff was entered, and the usual decree pro confesso, with a reference to the master to take, state and report the account between the parties.Notice of the proceedings before the master was given.On the 29th of March, 1871, the master's report was filed, which recites the appearance of plaintiff in error before him.After the filing of the report, and on the same day, a rule was entered, requiring plaintiff in error to show cause, by a particular day, if any he had, why the report should not be confirmed.No exceptions were ever taken to the master's report, and, at the April term, 1871, a final decree was entered, confirming the report and decreeing the payment of the amount found due, within thirty days, and awarding...