Phillips v. O'Connell

• Decision Date: 14 May 1945
• Docket Number: 43328.,Gen. Nos. 43319
• Parties: PHILLIPS v. O'CONNELL et al.
• Court: United States Appellate Court of Illinois

326 Ill.App. 15

61 N.E.2d 59

PHILLIPS

v.O'CONNELL et al.

Gen. Nos. 43319, 43328.

Appellate Court of Illinois, First District, First Division.

April 30, 1945.

Rehearing Denied May 14, 1945.

Appeals from Circuit Court, Cook County; No. 43319, R. Jerome Dunne, Judge; No. 43328, Walter J. LaBuy, Judge.

Action by Irving Berry Phillips against Agnes Dunne O'Connell, sometimes known and referred to as Agnes D. O'Connell, individually and as executrix and trustee under the last will of Eva Fitch Dunne, deceased, and others for foreclosure of a trust deed and entry of deficiency decree and for judgment on indebtedness secured by the trust deed. From orders denying a deficiency decree in the equity proceeding and transferring plaintiff's action at law for the balance unpaid to the law side of the court, and from an order denying plaintiff's petition to vacate such orders, the plaintiff appeals, and from an order dismissing the count involving the issue of law and from the orders, the plaintiff also appeals, and defendants move to dismiss the latter appeal.

Motion to dismiss the latter appeal granted, and such appeal dismissed, and orders reversed and cause remanded.Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago (Frank C. Bernard, of Chicago, of counsel), for appellant.

George A. Bosomburg, of Chicago, for appellees.

NIEMEYER, Presiding Justice.

By this appeal plaintiff seeks the reversal of an order denying a deficiency decree in a trust deed foreclosure proceeding against certain defendants, successors in interest to the mortgaged property, upon an agreement which the court held to be a contract of guaranty. Plaintiff claims that it is an extension agreement in which the defendants assumed and agreed to pay the mortgage indebtedness.

The trust deed being foreclosed was executed January 14, 1927 by Frederick T. Hoyt and Bettie F. Hoyt, his wife, to secure the payment of their principal promissory notes aggregating $37,500; March 29, 1927 the Hoyts conveyed the mortgaged property to Eva Fitch Dunne, subject to the trust deed securing the indebtedness above mentioned, ‘which indebtedness the grantee herein assumes and agrees to pay.’ Eva Fitch Dunne died April 14, 1930, and by her last will the mortgaged premises were devised to her daughter Agnes D. O'Connell, defendant, as trustee for herself, J. Paul Dunne, Edith Dunne and Faith Dunne Kirkley, children of the testatrix. The balance of $28,500 of the principal indebtedness secured by the trust deed coming due and payable January 14, 1932, the four beneficiaries of the trust, individually, and Agnes Dunne O'Connell, as executrix and trustee under the will of Eva Fitch Dunne, deceased, under date of December 31, 1931 executed the agreement in controversy, hereinafter called the extension agreement. It recited the execution of the trust deed, the holding of the notes secured thereby by The Northern Trust Company, the payment of $9,000 on the principal of said notes, and (in typewriting) that ‘Whereas, Agnes Dunne O'Connell individually and as executrix and trustee under the will of Eva Fitch Dunne, deceased, Edith E. Dunne, Mary Faith Kirkley, J. Paul Dunne have requested of The Northern Trust Company an extension of the above indebtedness and in consideration for said extension hereby guarantee payment of the same.’ The operative part (mostly printed) provided that, in consideration of the mutual promises and agreements thereinafter made by and between the parties, The Northern Trust Company agrees to extend the payment of the balance due on said indebtedness for one year, namely, until January 14, 1933, and the said beneficiaries under the trust, and Agnes Dunne O'Connell, as executrix and trustee, agree with The Northern Trust Company that they will pay to the legal owner of the notes the sum of $28,500 January 14, 1933, with interest at 6 per cent., and further, that the parties mutually agree that ‘all of the provisions, stipulations, powers and covenants in the said principal note, and in the said Trust Deed contained, shall stand and remain unchanged and in full force and effect for and during said extended period * * * except as changed or modified in express terms by this agreement.’

Default having been made in the payment of the mortgage indebtedness as provided in the agreement for an extension of the time of payment, suit was instituted against the signers of the extension agreement and The Northern Trust Company, trustee. Faith Dunne Kirkley having died before the complaint was filed, James M. Kirkley, Sr., her divorced husband, James M. Kirkley, Jr., her son, and Edith Dunne, as trustee under her last will and testament, were made defendants. The complaint consisted of two counts: Count 1, being the ordinary foreclosure complaint in equity asking for a deficiency decree against those personally liable therefor; and Count 2, setting up an action at law for the mortgage indebtedness. Defendants Agnes O'Connell and Edith Dunne, individually and in their representative capacities, filed answers denying execution of the extension agreement in its final form, and alleging alteration of the agreement by striking from the body of it the name of Josephine Dunne, wife of J. Paul Dunne, and the failure of Josephine Dunne to sign it.

A decree of foreclosure was entered directing a sale of the mortgaged premises and reserving jurisdiction for the purpose of determining the personal liability, if any, of the defendants for a deficiency. A sale of the premises was had and a decree approving same was entered June 14, 1938, finding a deficiency of $14,170.24, together with interest at 5 per cent from June 1, 1938. Shortly thereafter an order was entered referring the cause to a master in chancery ‘on the question of what persons, if any, are personally liable for the deficiency found in the former decree of this court,’ and denying defendants' counter-motion that the matter be transferred to the law side of the court for a trial by jury. The master to whom the cause had been referred having been elected to the office of Judge, a special commissioner was appointed who filed his report February 11, 1943. Plaintiff then moved for a decree against J. Paul Dunne, who had been defaulted, Agnes O'Connell, individually and as executrix and trustee, and Edith Dunne, individually, for the deficiency, then computed to be $9,945. He did not ask for a deficiency decree against the defendants substituted for Faith Dunne Kirkley. Plaintiff's objections to the report were permitted to stand as exceptions, and on hearing before the chancellor he, disregarding the commissioner's report, held that the extension agreement was a contract of guaranty and not one in which the defendants, successors in interest to the mortgaged property, assumed and agreed to pay the indebtedness secured by the trust deed being foreclosed and, by an order entered July 16, 1943, as amended July 28, 1943 (hereafter referred to as the 1943 orders), denied plaintiff's motion for a deficiency decree and, on defendants' motion, transferred the cause to the law side of the court for a trial by a jury of the issues under count 2 of the complaint. The special commissioner's report was stricken from the files and jurisdiction in chancery retained for the purpose of determining the fees of the special commissioner after determination and disposition of the issues under count 2 on the law side of the court. From these orders plaintiff appealed, and on defendants' motion we dismissed the appeal, holding that the orders were not final and appealablr orders so long as the issues under count 2 were pending and undisposed of. 322 Ill.App. 164, 54 N.E.2d 84. The mandate being filed, the court on June 30, 1944, ordered that ‘count 2 of the complaint be dismissed without prejudice on plaintiff's motion and without prejudice to the defendants' right, if any, of a jury trial,’ and gave leave to plaintiff to file instanter his petition to vacate the 1943 orders. By their answer to plaintiff's petition defendants Agnes O'Connell, individually and as trustee, and Edith Dunne, individually, alleged among other matters that plaintiff's claim for a deficiency was fully satisfied by settlement of his claim for deficiency against the estate of Frederick T. Hoyt, deceased, one of the makers of the original notes. On October 16, 1944 plaintiff's petition was denied. His appeal from that order and the 1943 orders is before us in cause 43319. Shortly thereafter, upon leave granted, plaintiff appealed from the order of June 30, 1944 dismissing count 2 of his complaint on his motion, and from the 1943 orders. This appeal is numbered 43328. The appeals have been consolidated. Defendants have filed a motion to dismiss the appeal numbered 43328, and this motion has been reserved to final hearing.

The situation here presented by the 1943 orders denying a deficiency decree in the equity proceeding and transferring plaintiff's action at law under count 2 for the balance unpaid on the mortgage notes to the law side of the court for a jury trial, is analogous to the situation created under the former practice act when a complaint in chancery was dismissed as to a part of the defendants and jurisdiction retained for disposition of the cause as to the remaining defendants. In such case it was held that there could be no appeal from the order of dismissal until the final disposition of the case. As said in Foote v. Yarlott, 238 Ill. 54, 57, 87 N.E. 62, 64; ‘The order was interlocutory and not appealable, since there can be no appeal until there has been a complete disposition of a cause as to all parties * * * there could be no appeal until the final decree, when the whole record, including the order of dismissal, might be brought up for review. Dreyer v. Goldy, 171 Ill. 434, 49 N.E. 560;Pain v. Kinney, 175 Ill. 264, 51 N.E....