John Allan Co. v. Brandow

• Decision Date: 13 May 1965
• Docket Number: Gen. No. 64-53
• Citation: 59 Ill.App.2d 328,207 N.E.2d 339
• Parties: The JOHN ALLAN COMPANY, a corporation, Plaintiff-Appellant, v. Myrna BRANDOW et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 339

207 N.E.2d 339

59 Ill.App.2d 328

The JOHN ALLAN COMPANY, a corporation, Plaintiff-Appellant, v. Myrna BRANDOW et al., Defendants-Appellees.

Gen. No. 64-53.

Appellate Court of Illinois, Third District.

May 13, 1965.

Allan L. Blair, Chicago, John A. McNamara, Marseilles, for appellant.

Joseph D. Carr, Berry & O'Conor, Pool & Langer, Ottawa, for appellees.

ALLOY, Presiding Justice.

This is an appeal from an order of the Circuit Court of LaSalle County dismissing Plaintiff's suit for failure to state a cause of action. Plaintiff The John Allan Company, a corporation, in its complaint charged substantially that Defendants conspired to illegally deprive it of its property; that as part of the conspiracy, Defendants committed perjury in a prior lawsuit, and it was alleged that the Judge in that suit found this was so. In the alternative Plaintiff also claims that Defendants are guilty of maintenance and champerty and malicious abuse of process.

The amended complaint which is the basis of the action contained three counts. Count I recites that the Defendant Myrna Brandow owned certain property which thereafter was sold to Interstate Bond Company on a tax judgment sale and forfeiture, and that after extending the period of redemption said Company duly served Myrna Brandow with notice. It is alleged that thereafter the County Court of LaSalle County entered an order directing the issuance of a tax deed to the company and that thereafter a tax deed was issued and, after a hearing, a Writ of Assistance put Plaintiff in possession of the property. After the issuance of the Writ of Assistance, it was alleged that Defendant Myrna Brandow either sold, leased or transferred the property to Defendant Harry A. Funk, and that thereafter the said Defendant Funk was the equitable owner of any claim made in connection with obtaining the title back from Plaintiff and not Myrna Brandow.

It is further alleged that for the purpose of assisting the Defendant Funk to obtain the title, Defendant Brandow, her husband, Robert Carr, an attorney, and said Harry A. Funk entered into a conspiracy to conceal from the Court and from the Plaintiff Funk's actual interest in the property; that in furtherance of said conspiracy a petition was filed in the name of the Defendant Myrna Brandow with full knowledge of all the parties that the facts alleged therein were untrue; that after an appeal to the Supreme Court and a trial in the County Court, that Defendants in furtherance of the conspiracy still proceeded to attempt to gain the title to the property away from Plaintiff and filed affidavits and gave testimony in the County Court that they knew to be false.

The complaint further alleges that after a trial on the merits, the County Court of LaSalle County specifically held that the Brandows testified falsely and that many of the sweeping allegations made by their attorney in pleading were not understood by them. It was also alleged that in furtherance of the conspiracy the Defendant Robert Carr proceeded to act as an attorney for Myrna Brandow when in fact he was acting on behalf of Defendant Funk, and that he actively suborned perjury and knowingly and willfully prepared a false pleading. It is also alleged that Defendant Funk in furtherance of the conspiracy advanced the costs of the trial. It was likewise alleged that in the event Defendant Funk did not have an interest in the property then he would be guilty of maintenance and champerty. In another count it is contended that Defendants Brandow and Robert Carr, the attorney, used the litigation as a subterfuge to obtain that which they could not legally obtain, that is the title to the property in question, and that the use of the Courts for such purpose was an abuse of process. Plaintiff then prays for damages and a body execution to enforce the judgment.

The trial court, after the filing of the motion to dismiss the complaint, found as to Count I that it was recognized that a civil action cannot be brought as against witnesses who give false testimony pursuant to a conspiracy and that various attempts have been made to sue for conspiracy to procure the giving of false testimony but that such efforts had not been met with success. The court cited the New York Supreme Court Case of Williams v. McClellan, 59 Misc. 620, 111 N.Y.S. 229, 230, in which the Court stated: 'It is well-settled law that an action at law will not lie to recover damages for perjury alleged to have been committed in a former case in which plaintiff might have been interested. * * * And it must follow that an action such as this, which is to recover damages for an alleged conspiracy by the defendants to commit perjury, as well as for the giving of the alleged false testimony, cannot be maintained. It cannot be that a conspiracy to do a thing is actionable where the thing itself would not be.'

As to Count II, the Court points out that Illinois Revised Statutes, Chapter 30, Section 4, provides 'Any person claiming right or title to lands * * * although he, she or they may be out of possession, and notwithstanding there may be an adverse possession thereof, may sell, convey and transfer his or her interest in and to the same, in as full and complete a manner as if he or she were in the actual possession of the lands and premises intended to be conveyed; and the grantee or grantees shall have the same right of action for the recovery thereof, and shall in all respects derive the same benefit and advantage therefrom, as if the grantor or grantors had been in the actual possession at the time of executing the conveyance.' The Court concluded that accordingly such conveyance would no longer be contrary to the policy of the law against maintenance. As to Count III, the Court points out that the Count does not aver either that the Plaintiff was arrested or its property seized, citing Bonney v. King, 201 Ill. 47, 51, 66 N.E. 377, and stated that mere institution of civil suits though groundless and malicious does not constitute malicious abuse of process; that an action for abuse of process will not...