People ex rel. Nelson v. Stony Island State Sav. Bank
| Citation | 355 Ill. 401,189 N.E. 267 |
| Decision Date | 23 February 1934 |
| Docket Number | No. 22157.,22157. |
| Parties | PEOPLE ex rel. NELSON, Auditor of Public Accounts, v. STONY ISLAND STATE SAV. BANK et al. |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Error to First Branch Appellate Court, First District, on appeal from Superior Court, Cook County; William J. Lindsay, judge.
Proceeding by the People, on the relation of Oscar Nelson, Auditor of Public Accounts, against the Stony Island State Savings Bank, wherein Irwin T. Gilruth was appointed as receiver, and wherein Patrick Nolan and another filed a claim against the bank. On writ of certiorari to review the action of the Appellate Court in dismissing the appeal of the receiver from a decree of the Superior Court in favor of the claimants allowing their claim as a preferred claim.
Judgment of the Appellate Court affirmed.
Kirkland, Fleming, Green & Martin, of Chicago (Adrian L. Hoover and Dudley F. Jessopp, both of Chicago, of counsel), for plaintiff in error.
Milton M. Adelman, of Chicago, for defendants in error.
A writ of certiorari has been awarded by this court to review the action of the Appellate Court for the First District in dismissing the plaintiff in error's appeal from a decree of the superior court of Cook county.
Patrick and Anna Nolan, defendants in error, filed their original and amended petitions in the proceedings in the superior court of Cook county for the liquidation of the Stony Island State Savings Bank, a banking corporation, seeking to have allowed as a preferred claim against the assets of the bank a deposit of $2,500 made on June 8, 1931, the day before the bank was closed for examination and adjustment pursuant to a resolution of its board of directors. In their petitions defendants in error alleged that the bank was insolvent at the time of the acceptance of the deposit and that the managing officers had knowledge of the alleged insolvency; that, because of such alleged insolvency, the act of the bank in accepting the deposit was wrongful, and the bank thereby became a trustee ex maleficio of their money. Answers were filed to both petitions by Irwin T. Gilruth, plaintiff in error, receiver for the Stony Island State Savings Bank, in which he demandedstrict proof of these allegations. The chancellor heard the evidence offered by defendants in error. Plaintiff in error offered no evidence, and a decree was entered finding the facts substantially as stated above. The court ordered that the claim of the defendants in error in the sum of $2,500 be classed as a preferred claim, provided that, upon the distribution of the assets of the bank, it is determined that there were in the bank's possession at the time it was closed, and that there came into the receiver's hands, assets subject to preferred claims, and that the money of the defendants in error, or some of it, formed a part of such assets, and that their claim should be paid therefrom. It was further ordered that the question of the existence of such assets which came into the receiver's possession and whether such assets were subject to the claim of defendants in error were questions jurisdiction over which was reserved for future determination. The decree further directed that, if no funds subject to this claim were found in the receiver's hands, then the claim should be allowed as a general, rather than a preferred, claim. The receiver appealed to the Appellate Court for the First District. A motion to dismiss the appeal because the decree was not final but interlocutory was overruled, but in its decision the Appellate Court determined that the motion was erroneously overruled, and held that the appeal was not properly brought for the reasons stated in support of the motion to dismiss.
If the Appellate Court improperly dismissed the appeal, the order of this court should reverse its judgment of dismissal, and the cause would be remanded to that court, with directions to consider the merits of the case. If that court properly dismissed the appeal, this court should affirm the judgment.
The sole question for our determination is whether or not the decree of the...
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