People ex rel. Brignall v. Lewe

• Decision Date: 20 September 1943
• Docket Number: No. 27089.,27089.
• Parties: PEOPLE ex rel. BRIGNALL v. LEWE, Judge.
• Court: Illinois Supreme Court

383 Ill. 549

50 N.E.2d 577

PEOPLE ex rel. BRIGNALL

v.LEWE, Judge.

No. 27089.

Supreme Court of Illinois.

May 20, 1943.

As Modified on Denial of Rehearing Sept. 20, 1943.

Original proceeding by the People, on the relation of Lizzie Brignall, administratrix, against John C. Lewe, Judge, for a writ of mandamus to compel respondent to proceed with a hearing and to dispose of a cause pending before him. Submitted upon the petition, answer, and relator's motion to strike the answer.

Writ denied.Reuel H. Grunewald, Robert F. Kolb, and Francis M. Cooper, all of Chicago, for petitioner.

Schuyler & Hennessy and Jay Stough, all of Chicago, for respondent.

WILSON, Justice.

The People of the State, on the relation of Lizzie Brignall, administratrix of the estate of Charles Brignall, deceased, filed an original petition for a writ of mandamus commanding the defendant, John C. Lewe, a judge of the superior court of Cook county, to proceed with the hearing and to expeditiously dispose of a cause pending before him entitled Charles Brignall v. Frank P. Merkle, et al., upon the testimony taken and certified to by the master in chancery to whom the cause had been re-referred subsequent to the death of the master to whom it was originally referred. Respondent interposed an answer to the petition. Plaintiff's motion to strike the answer has been treated as closing the issues. Upon these pleadings the cause is submitted.

February 16, 1939, Charles Brignall obtained a judgment for $19,653.96 against Frank Merkle in the circuit court of Cook county in an action on three notes executed by Merkle in 1931. An attachment in aid was sued out and the writ levied on improved real estate described as the ‘Kenilworth’ property. The Appellate Court for the First District affirmed the orders sustaining the attachment on the ground that a mortgage and conveyance by deed of the property by Merkle subsequent to the date of the judgment were fraudulent. Brignall v. Merkle, 306 Ill.App. 137, 28 N.E.2d 311. October 17, 1940, we denied Merkle's petition for leave to appeal. 306 Ill.App. XVI. Thereafter, general and special executions were issued and the sheriff levied upon Merkle's interest in the ‘Kenilworth’ property.

In the meantime, on April 3, 1939, Brignall filed his complaint in aid of execution in the superior court of Cook county, charging that not only the Kenilworth property but two other parcels of real estate, designated as ‘Evanston’ and ‘Halsted’ properties, owned by Merkle, had been likewise fraudulently conveyed by him subsequent to the entry of plaintiff's judgment. Frank P. Merkle, Leona V. Merkle, Aletha I. Voris, William Philip McNulty, Elsie Sturm, Benjamin T. Warwick, Lucille Loewy, and the Chicago Title and Trust Company, as trustee, were made defendants. Personal service was had upon all defendants except Warwick and his wife, who were served by publication. Defaults against defendants Warwick and Sturm were taken. The other defendants answered the complaint, denying any fraud and averring that the challenged conveyances were made in good faith and for value. On January 30, 1940, Judge Charles A. Williams, before whom to cause was then pending, referred it to a master in chancery, Robert W. Dunn, ‘to take evidence and to report the same back to said court with his conclusions of law and fact thereon.’ From February 16, 1940, to April 5, 1941, 701 pages of evidence in chief and rebuttal on the part of plaintiff, together with considerable documentary evidence, were taken. This evidence was transcribed and submitted to master Dunn for consideration and certification. Other testimony, offered by defendants, was not transcribed or submitted to him. The last hearing at which evidence was taken before master Dunn was on April 15, 1941. He died May 7, 1941, before rendering his report and without having certified to, made findings upon, or drawn conclusions from the evidence.

June 12, 1941, Leona V. Merkle, one of the defendants, advised respondent of the death of, and moved to vacate the order of reference to, master Dunn, and to re-refer it to another master to take proofs and report the evidence, together with his conclusions of law and fact. This motion was denied, but on motion of plaintiff, and over the objection of defendants, respondent entered an order directing that the cause be referred to James R. Bryant, as special master, ‘to ascertain and certify to the evidence heretofore taken herein by Robert W. Dunn, a former master in chancery of this court, now deceased, as such special master and to take any other or further evidence that may be offered by the parties hereto and certify the same to this court with all convenient speed.’ To the entry of this order each defendant objected, and exceptions thereto were noted on the order. From June 18 to October 28, 1941, hearings were had before master Bryant, and proof adduced as to the evidence heard before master Dunn. Other evidence on the merits was also received. In addition to the transcript of plaintiff's evidence previously mentioned, and the exhibits included therein, 201 pages of testimony taken by master Bryant, together with documentary evidence, were transcribed and included in his report, dated November 14, 1941. Upon minor corrections being made, objections to his report were overruled. January 16, 1942, the report was submitted to the court, certifying the evidence which had been introduced by plaintiff before master Dunn and, also, the testimony offered before himself by certain defendants, but not certifying any of the evidence introduced by the defendants before master Dunn, no transcript having been offered in evidence upon the second reference.

January 27, 1942, after master Bryant's report was filed, on motion of plaintiff and over the objection of defendants, respondent entered an order directing each defendant to produce and file a transcript of all evidence, if any, taken on his behalf before master Dunn. Subsequently, transcripts of the testimony on direct examination of various witnesses for defendants before master Dunn, certified to by the court reporter attending the hearings before the master, were filed. No transcript of the testimony on cross-examination of these witnesses has ever been filed. Objections by plaintiff to the filing of these transcripts on the grounds they were not certified by master Bryant and omitted the testimony on cross-examination are still pending disposition.

Numerous continuances were granted. Relatrix alleges that on April 15, 1942, the cause was continued generally, respondent announcing he would proceed to read the record and evidence, and would then, upon notice to the parties and counsel, dispose of the cause. Later, pursuant to notice served by plaintiff, respondent set a hearing for July 21, when, according to relatrix, respondent stated he would finally dispose of the cause on its merits and, also, all pending motions. July 21, the cause was further continued to July 28, when, at plaintiff's request, it was set for July 31. On the day last named, plaintiff's attorneys and attorneys for certain defendants argued the cause on its merits ‘a large portion of said day.’ At this hearing, defendants' objections to the order of reference to master Bryant were renewed. They contended that either some judge of the superior court should hear the testimony or that the cause be referred to a master who could hear and see the witnesses and report his conclusions. Respondent announced he would reserve his ruling on these objections, and continued further argument until after the summer vacation.

At the September, 1942, term of the superior court, respondent was assigned to the trial of law actions, and the cause was assigned to Judge Ulysses S. Schwartz, pursuant to the rules and practice of the superior court. October 7, 1942, respondent, in response to plaintiff's request, upon notice, set the cause for October 30, 1942. Relatrix alleges that, with the permission of respondent, plaintiff's counsel appeared before the executive committee of the superior court, advised the committee that respondent had considered all the evidence in the cause and, if assigned to him, would finally dispose of it on the merits, and that, upon these representations, the cause was transferred and reassigned to respondent.

The principal conflict between the allegations of relatrix's petition and the averments of respondent's answer relates to what transpired on October 30, 1942. According to the former, respondent expressed a doubt as to his right to hear the cause and render a decision upon the merits on the evidence certified to and reported by master Bryant, stating he was of the opinion the entire cause should be re-heard by a master; that when plaintiff protested against the procedure recommended respondent suggested the cause be heard anew before the court and the witnesses produced in open court; that plaintiff objected, insisting the cause be disposed of finally be respondent upon the evidence certified by master Bryant, and that plaintiff likewise objected to transfer of the cause to any other judge on the ground respondent had read and considered all the evidence before him, the sole remaining duty devolving upon him being the rendition of a final decree disposing of pending motions and the cause on the merits. According...