Morrison v. Austin State Bank
| Decision Date | 08 February 1905 |
| Citation | 213 Ill. 472,72 N.E. 1109 |
| Parties | MORRISON v. AUSTIN STATE BANK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District.
Suit by John J. Morrison and others against George I. O'Brien. The Austin State Bank intervened. From a decree of the Appellate Court (113 Ill. App. 651) affirming a decree for the intervener, John J. Morrison appeals. Reversed.James A. Brady, for appellant.
Castle, Williams & Smith (Ben M. Smith, of counsel), for appellee.
This is an appeal from a judgment of the Appellate Court for the First District, affirming a decree rendered by the superior court of Cook county on an intervening petition filed by the appellee in an equitable action brought by the appellant,John J. Morrison, and James D. Morrison and William Sullivan, against one George I. O'Brien. The original bill was brought by the appellant, John J. Morrison, and James D. Morrison and William Sullivan, against George I. O'Brien, setting up that said four parties had constituted a partnership under the firm name of John J. Morrison & Co. & O'Brien, and that said O'Brien had collected and converted to his own use certain assets of the partnership, viz., certain warrants issued to the partnership by the town of Cicero, and praying for an accounting and the appointment of a receiver. A receiver was appointed, and served notice upon the town of Cicero that said warrants belonged to said receiver and should be paid to none other. Thereupon the appellee herein, which had in the meantime acquired possession of said warrants in the manner hereinafter described, filed its said petition for an order commanding said receiver to withdraw said notice. A hearing was had on said petition, and a decree rendered in favor of the appellee. The question as to the ownership of these warrants was the only one to be determined, so that the decree rendered on said petition practically decided the entire cause. After the rendition of said decree an order was made by the superior court finding that the appellant and James D. Morrison and William Sullivan were interested in said decree, so as to be entitled to appeal therefrom, either jointly or severally, and authorizing such joint or several appeal. Thereafter the appellant herein duly perfected his separate appeal to the Appellate Court, from which he has also duly perfected his separate appeal to this court. Neither of the other parties has appealed. The appellant and appellee thereafter stipulated that the record in the cause on appeal to the Appellate Court and the Supreme Court should consist of the decree, the order authorizing the appeal by the appellant, and the stipulation, and that the facts shown by the recitals in the decree were true. It was agreed by the stipulation that the case should be submitted to the upper courts on the objectionof the appellee to the appellant's right of appeal, and upon the objection of appellant to the correctness of the decree on the facts as therein recited.
The admitted facts presented by the decree are that George I. O'Brien, a partner of the firm of John J. Morrison & Co. & O'Brien, did on the 27th day of February, 1901, on behalf of and as a partner in said firm, receive from the town of Cicero, a municipal corporation, certain vouchers or warrants, amounting to the sum of $2,208.10, and being in the form following:
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¦This warrant is payable ¦
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¦only from the special assessment ¦
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¦named when collected. ¦
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¦ ¦Cook County, Illinois, ¦
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¦No_______ ¦Town of Cicero. ¦
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¦Clerk's Office, Austin, Feb. 21, 1901. ¦
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¦Treasurer Town of Cicero: ¦
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¦Pay to John J. Morrison Co. & O'Brien the ¦
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¦sum of ______dollars for bal. on cement walks ¦
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¦______________out of the appropriation for the ¦
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¦special No______ fund only. And charge same ¦
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¦to the appropriation for said fund. ($________:)¦
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¦I hereby certify that the above bill was ¦
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¦ordered paid by the board of trustees of the ¦
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¦town of Cicero. ¦ ¦
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¦ ¦Countersigned, ¦
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¦Signed, ¦John I. Jones, ¦
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¦J.E. Tristram, ¦Pres't Town of Cicero. ¦
+-------------------+----------------------------¦
¦Town Clerk. ¦ ¦
+------------------------------------------------+
It is also admitted that these vouchers were executed and issued by said town of Cicero for work done and material furnished by said firm of John J. Morrison & Co. & O'Brien under written contracts made by said firm and its assignors with the town of Cicero for the laying of cement sidewalks; that after receiving said vouchers or warrants aforesaid the said George I. O'Brien indorsed them and delivered them to his father, Thomas O'Brien; that such indorsement and delivery were without any express authority from his co-partners, and that his copartners, and the receiver thereafter appointed of such copartnership assets, repudiated the action of said George I. O'Brien in making such indorsement and delivery when the same became known to them; that the sole consideration for the said indorsement and delivery was a past-due indebtedness of George I. O'Brien to his said father, Thomas O'Brien, and that the said Thomas O'Brien was acquainted with the affairs of the said copartnership of said John J. Morrison & Co. & O'Brien, and was chargeable with knowledge that the said warrants were the property of said John J. Morrison & Co. & O'Brien; that Thomas O'Brien indorsed the said warrants and delivered them to the Austin State Bank, the appellee herein, and received in payment therefor the sum of $2,053.90, which he kept and applied to his own use, and that neither the said firm nor its receiver has ever received any part thereof, or derived any benefit from said payment; that the Austin State Bank received the warrants in the usual and ordinary course of business, for the valuable consideration aforesaid; that it had no notice, information, or knowledge, except as derived from the face of the said warrants, of any claim of any nature of any other person to said warrants, or that the said firm of John J. Morrison & Co. & O'Brien was in the hands of a receiver, or that Edwin J. Zimmer had been appointed such receiver, or that litigation was then pending; that on the 11th day of October, 1901, the receiver, Zimmer, served notice on the treasurer of the town of Cicero claiming the moneys represented by the warrants above described; and that on December 20, 1901, the Austin State Bank, appellee herein, presented the warrants to the said treasurer for payment and payment was refused.
Appellant has assigned a number of errors, but the principal one is that the court erred in holding that the vouchers and warrants in question, and the moneys represented thereby, were not the property of the partnership, and should be delivered to the receiver.
RICKS, C. J. (after stating the facts).
Appellee by its brief questions the right of John J. Morrison, the appellant, to prosecute this appeal, and that question will first receive our consideration. The record was made up by a stipulation of the parties, in which it was agreed that the record should consist of the decree of the superior court, the order of court granting the appeal, and the stipulation. It is also agreed ‘that the record, pleadings, and proof in such case is hereby waived, and no exception, benefit, or advantage shall be taken by either party hereto to the same.’ It is also agreed that the objection of appellee that appellant has not the right of appeal, and the objection of the appellant to the correctness of the decree on the facts, are submitted to the consideration of the Appellate Court, and in case of an appeal to this court the same questions shall be presented. We think appellee's contention should be denied for two reasons. Appellee did not assign cross-error in the Appellate Court or in this court, nor did it make a motion in this court to dismiss the appeal upon the ground stated. Parties may agree upon the questions they will present to the court upon the record, and they will be confined to them; but the court does not consider error upon the mere agreement of the parties. Notwithstanding the agreement, the errors reliedon must be assigned. The Appellate court took jurisdiction of the cause and disposed of it upon its merits.
The decree is not predicated upon the ground that John J. Morrison, the appellant, had no interest in the subject-matter, but that the better right to the property in question was in the appellee; so that there is nothing appearing in the facts of the decree which tends to show that Morrison was not interested, but, on the contrary, the facts and recitals in the decree tend to show that he was interested, in the subject-matter. Appellee recites and relies upon Gogan v. Burdick, 182 Ill. 126, 55 N. E. 126, from which it quotes: ‘The settled rule is that a...
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