Molner v. Cartenos
| Citation | 112 N.E.2d 470,415 Ill. 172 |
| Decision Date | 20 May 1953 |
| Docket Number | No. 32626,32626 |
| Parties | MOLNER v. CARTENOS et al. |
| Court | Supreme Court of Illinois |
Maurice Weissman, of Chicago, for appellant.
Allen, Darlington & Elliott, of Chicago, for appellee Gust Cartenos.
B. H. Molner filed a complaint for partition against Gust Cartenos and others in the superior court of Cook County. This appeal is from an order dismissing that complaint for want of equity. A freehold is involved. The question presented here relates to the propriety of the court's disposition of the case upon the merits, in view of the state of the pleadings when the order was entered.
The verified complaint alleged that plaintiff is the owner of an undivided one-half interest in certain premises, by virtue of a deed from the bailiff of the municipal court. The sworn answer of defendant Gust Cartenos charged that the deed under which plaintiff claimed title was issued as a result of an execution levied upon a joint judgment entered in the municipal court against defendant and his wife, Lillian Cartenos; that Lillian Cartenos had been dead more than eleven years before the commencement of the municipal court action; that the judgment and levy of execution were therefore null and void, and that no right, title, or interest in the property vested in the plaintiff by virtue of the bailiff's deed. A certified copy of the certificate of the death of Lillian Cartenos was attached to the answer. By his counterclaim, defendant Gust Cartenos asked that the deed be declared void and removed as a cloud upon his title. A transcript of the municipal court proceedings was attached to the counterclaim.
One day following the filing of his answer, defendant filed a motion for involuntary dismissal. This motion was supported by his affidavit, a transcript of the municipal court proceedings, and a certificate of the death of Lillian Cartenos. On the same day he filed a separate motion to strike certain paragraphs of the complaint, to dismiss Molner as plaintiff, and to substitute Cartenos as plaintiff in the place of Molner. This motion attacked the validity of the bailiff's deed and the judgment on which it was based. The plaintiff thereafter filed a reply to the answer and an answer to the counterclaim, in which he alleged that he had no information or knowledge concerning the death of Lillian Cartenos, that the return of the bailiff of the municipal court in the former action reveals that a summons was properly served upon her, that defendant was guilty of laches in not bringing to the attention of the municipal court his knowledge concerning the judgment, and that defendant is bound by the municipal court judgment. Plaintiff also filed a counteraffidavit and certain suggestions in opposition to the motion of defendant, in which he set forth substantially the same matters contained in his reply.
On July 3, 1952, after these pleadings and motions had been filed, the court conducted a hearing 'upon the written motion of Gust Cartenos * * * to have to Court pass upon the validity of the deed of conveyance issued by the Bailiff of the Municipal Court of Chicago to plaintiff * * *' and then entered the disputed order. That order recites that it was entered upon a consideration of the sworn pleadings and exhibits, and after hearing 'the statements, admissions, and arguments' of counsel. It finds that Lillian Cartenos died more than eleven years prior to the commencement of the municipal court proceeding upon which plaintiff's deed is based that the municipal court judgment is void as to Lillian Cartenos, and since it is a joint judgment, is void also as to Gust Cartenos. It orders the deed set aside as a cloud upon defendant's title, and dismisses the complaint for want of equity.
Plaintiff argues the case as though the order appealed from reflects the court's disposition of the motion for involuntary dismissal under section 48 of the Civil Practice Act. (Ill.Rev.Stat.1951, chap. 110, par. 172.) From the record, however, it appears that no action was even taken with respect to the motion under section 48, which seems to have been abandoned.
Plaintiff's position is that the pleadings produced issues of fact, and that the court was...
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