Kanauske v. Clark

• Decision Date: 22 November 1944
• Docket Number: No. 28090.,28090.
• Citation: 57 N.E.2d 890,388 Ill. 357
• Parties: KANAUSKE et al. v. CLARK et al.
• Court: Illinois Supreme Court

388 Ill. 357

57 N.E.2d 890

KANAUSKE et al.

v.CLARK et al.

No. 28090.

Supreme Court of Illinois.

Nov. 22, 1944.

Suit by Charles Kanauske and wife against Zoe Clark and another to set aside a deed. From a decree dismissing the complaint, the plaintiffs appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Kane County; Harry W. McEwen, judge.

Henry W. Kenoe and Konstant J. Savickus, both of Chicago, for appellants.

Carleton A. Shults, of Aurora, for appellees.

MURPHY, Justice.

The title to a part of lot 2 of block 2 of Gale's addition to West Aurora in the city of Aurora is involved in this action. It was owned by William Kanauske at the time of his death in November, 1941. He left a will by which he devised this lot to his brother Charles Kanauske. A few days thereafter, but preceding the probate of the will, Charles Kanauske and Elizabeth Kanauske, husband and wife, plaintiffs herein, conveyed it by warranty deed to defendant Zoe Clark. In June, 1942, plaintiffs started this suit in the circuit court of Kane county to set the deed aside on the grounds that defendant Clark had obtained the same through false and fraudulent means. After the deed was executed by plaintiffs it was left in the possession of the attorney who drafted it, the defendant Charles A. O'Connor. It was never filed for record, but no question is raised on this appeal as to its delivery. Separate answers were filed by each defendant and the cause was referred to the master in chancery. At the conclusion of plaintiffs' evidence, defendant Clark moved to dismiss the action for want of equity. No further evidence was offered and the master submitted a report to the court which included the motion and all the evidence. As to the motion, the master reported that he did not have authority to pass upon it but he submitted findings of fact based upon the evidence taken and recommended that plaintiffs' complaint be dismissed for want of equity. After a hearing on exceptions to the master's report, a decree was entered dismissing the complaint for want of equity. This appeal followed.

Plaintiffs' first contention is that the master, being a ministerial officer, had no authority to pass upon defendant's motion to dismiss made at the conclusion of plaintiffs' evidence. In making such contention plaintiffs misapprehend the action taken by the master in reference to such motion, for, as stated, he included in his report to the court his conclusion that he did not have authority to rule on the motion. His report contained findings of fact based solely upon the evidence introduced by plaintiffs, all of which were to the effect that plaintiffs had not established a case. Defendant's motion to dismiss for want of equity had the effect of submitting the cause of plaintiffs' evidence alone and it thereby became the province of the master to include in his report findings of fact based upon such evidence. The decree appealed from refers to defendant's motion to dismiss but it does not contain any provision expressly overruling it. The decree confirmed the findings of fact of the master and ordered dismissal of the complaint for want of equity.

Counsel for the respective parties refer to the rule applicable to a motion to dismiss a complaint in chancery made at the conclusion of the plaintiffs' evidence as it existed prior to the adoption of paragraph 4 of section 64 of the Civil Practice Act, Ill.Rev.Stat.1943, c. 110, § 188(4), and the rule to be followed after its enactment. The rule applicable before the statute was passed was that the making of the motion amounted to a submission of the cause on the evidence taken. Thorworth v. Scheets, 269 Ill. 573, 110 N.E. 42;Koebel v. Doyle, 256 Ill. 610, 100 N.E. 154. The statute provides that if the decision on the motion is adverse to the defendant, he may proceed to adduce evidence in support of his defense, in which event the motion to dismiss or for a finding shall be deemed to have been waived and withdrawn. It will be noted that the statute does not change the rule, unless the decision on defendant's motion is adverse to the defendant. If the decree in this case be considered as disposing of the motion, then it must be conceded it was favorable to the defendant. Under such circumstances, the statute has no application and it is not necessary to consider its legal effect if the decision had been adverse to defendant.

Plaintiffs contend that the evidence supports the allegations of their complaint and that the chancellor erred in dismissing it for want of equity. William Kanauske and plaintiffs were Lithuanians, who came to this country many years ago. Plaintiffs resided in Chicago and William Kanauske, prior to his death, lived in Aurora. Plaintiff Charles Kanauske was a moulder by trade, and William, for several years prior to his death, had been engaged in the liquor business. At the time of his death his property consisted of the lot in question, valued at about $6500, personal property of the value...