Ragen v. Bennigsen

• Decision Date: 29 May 1956
• Docket Number: Gen. No. 46769
• Citation: 135 N.E.2d 128,10 Ill.App.2d 356
• Parties: Aleen B. RAGEN, Appellant, v. Edward J. BENNIGSEN, Appellee.
• Court: United States Appellate Court of Illinois

Page 128

135 N.E.2d 128

10 Ill.App.2d 356

Aleen B. RAGEN, Appellant, v. Edward J. BENNIGSEN, Appellee.

Gen. No. 46769.

Appellate Court of Illinois, First District, Second Division.

May 29, 1956.

Wisch & Crane, Chicago, James E. Brown, Leonard Kravets, Chicago, of counsel, for appellant.

Murphy, Pearson & O'Connor, Chicago, for appellee.

McCORMICK, Presiding Justice.

Judgment was confessed in favor of plaintiff in the amount of $38,322.22 on May 20, 1953, in the Superior Court of Cook County in an action based on a complaint and cognovit. Subsequently the defendant filed a motion and affidavit to vacate or open up the judgment, to which affidavit the plaintiff filed a reply, and on June 3, 1953, the court ordered that the judgment be opened, the cause be set for hearing and that the judgment stand as security. A hearing was had before the court and on May 26, 1955, the trial court sustained a motion of the defendant to find the issues for the defendant at the close of plaintiff's evidence, from which judgment this appeal is taken.

It appears from the evidence that the notes in question were executed by the defendant on December 27, 1941 and were delivered by him to James M. Ragen, Jr., together with a contract which related to the purchase of an interest in a partnership known as Gulf Stream Printers. In the complaint the plaintiff states that 'the said James M. Ragen, Jr., for value received, afterwards negotiated the said notes by delivering the same to the plaintiff.' On July 3, 1952, the plaintiff, Aleen B. Ragen, was divorced from James M. Ragen, Jr. and at some time close to that date an agreement between the Ragens with reference to property rights, with a list of assets attached, was executed.

In the affidavit of the defendant in support of his motion to open up the judgment, the defendant stated, among other things, that on July 3, 1952, the plaintiff was divorced from the said James M. Ragen, Jr. On information and belief the defendant further stated that the plaintiff found the notes concerned herein in the personal belongings of James M. Ragen, Jr. and initiated a judgment by confession without any right, title or interest to the said notes. Defendant further stated that the plaintiff is not the bona fide owner and holder of the said notes; that at the time of the divorce the said James M. Ragen, Jr., filed a list of securities which formed a part of the divorce settlement; that 'a review of said list of securities does not indicate that the affiant was indebted to said James M. Ragen, Jr.'; that subsequently there was a complaint in the nature of a bill of review filed by the plaintiff in the Superior Court of Cook County to which was attached an Exhibit A, 'in which Exhibit was set forth the assets assigned by James M. Ragen, Jr.; that nowhere in said Exhibit does it appear that said notes were assigned to plaintiff.' Defendant also alleged the defense of payment.

Plaintiff filed a reply sworn to by her attorney, in which she admits the divorce and that the list of securities filed by James M. Ragen, Jr., did not indicate that the defendant was indebted to Ragen, and denied in toto the allegations in the answer with reference to the ownership of the notes and payment, as well as the allegation with reference to the complaint in the nature of a bill of review.

Subsequently the defendant filed a motion to dismiss the action on the ground that the notes here sued upon are not bearer notes in that said notes were payable 'to the order of bearer' and not 'to bearer,' which motion the court denied.

Plaintiff here urges that the trial court erred in refusing to admit the notes in evidence before the plaintiff proved ownership thereof. On the hearing, before any evidence was introduced, there was considerable discussion between the court and counsel as to who had the duty of proceeding and as to what proof was necessary. The plaintiff suggested that the execution of the notes not having been denied, the notes should be admitted in evidence, which would make out a prima facie case in favor of the plaintiff; that the law is, that once a bearer note in the hands of a holder is produced, there is no necessity for the plaintiff to prove either that she was the owner of the note or a holder in due course. During this discussion the court stated that ownership would have to be proved as a part of plaintiff's case, and counsel for the plaintiff then said that if the court wanted him to he would put in that proof. The plaintiff took the stand and subsequently there was a further discussion with reference to the order of proof. The court then stated that while it was undoubtedly the rule that the production in open court of bearer notes by the plaintiff would ordinarily be sufficient evidence of the ownership of the notes, because of the fact that there were allegations in the pleadings indicating that the notes were delivered originally to James M. Ragen, Jr. and that he negotiated the notes by delivery to the plaintiff, the burden was on the plaintiff not only to produce the notes in court but to prove ownership; whereupon plaintiff's counsel stated he would proceed.

Plaintiff then testified that the notes in question were originally the property of her former husband, James M. Ragen, Jr.; that she found them in her home and took physical possession of them after she had received her divorce and that she did not know whether or not the notes had been paid; that at the time of the divorce an agreement captioned 'Agreement, Assignment and Conveyance' was executed by her and James M. Ragen, Jr., and she identified a document marked plaintiff's exhibit 1 as a photostatic copy of such agreement, which she offered in evidence. Upon the objection of the defendant that the original be produced or accounted for, the court refused to admit plaintiff's exhibit 1 in evidence. The notes were then offered in evidence and the court stated that he would overrule the objections and admit them, giving as his reason therefor that their admissibility was 'governed by the fact that they had been executed and they are bearer notes and they have been in her physical possession and she has testified as to how they came into it. The fact that they came into physical possession does not mean that she is the owner. * * * Counsel sometimes seem to get in mind that when something is admitted into evidence, the legal effect is determined at the same time. It is not.'

On cross-examination plaintiff testified that there was no written contract nor any verbal commitment between her and her former husband concerning the notes other than the agreement to which we have referred, plaintiff's exhibit 1; that she found the notes in question among papers belonging to her husband which were in the former matrimonial domicile, which she was then occupying.

In our view of the case it is not necessary to determine whether or not the court was in error in the view which he took of the law. Following the discussion between court and counsel as to the necessity of proof of ownership of the notes by the plaintiff, the plaintiff did not offer the notes and obtain a ruling from the court as to whether or not they would be admitted without proof of ownership. Nothing was done except that a conversation took place between counsel and the court. Such procedure does not amount to an offer of evidence, and the remarks of the court did not amount to a refusal to admit evidence. There could be no refusal to admit that which has not been offered, and counsel cannot by engaging in a mere conversation with the court, even though it may relate to procedure, or by merely stating what he desired to do, get a ruling by the court upon which he can predicate error. Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 328, 68 N.E. 1087. By subsequently following the court's suggestion and proceeding to prove ownership plaintiff waived whatever right she had to object to any allegedly erroneous ruling of the court. Ringholm v. Fitzgerald, 208 Ill.App. 268; Huling v. Century Publishing & Engraving Co., 108 Ill.App. 549. Where an issue is joined upon the question of ownership, the burden in the primary sense rests upon the plaintiff to prove ownership, and this is true in spite of the fact that possession by the plaintiff of a bearer note may raise a presumption of ownership which would make out a prima facie case. Such presumption would only affect the burden of going forward with the evidence. Franklin Bank v. St. Louis Car Co., 321 Mo. 199, 9 S.W.2d 901, 60 A.L.R. 639; Pierik v. Mueller, 201 Ill.App. 108.

When evidence is introduced either by the plaintiff or defendant which is sufficient to rebut the presumption the plaintiff must sustain the primary burden of proof and show that he is the owner of the note. Here, before the notes were offered in evidence, the plaintiff testified that she had acquired physical possession of the notes through finding them among the papers of her divorced husband. The effect of plaintiff's testimony as to how the notes came into her possession was sufficient to rebut any presumption which had attached or came into existence because of her possession of a negotiable instrument payable to bearer. In Balch v. English, 247 Ill.App. 429, a suit was brought on bearer bonds. In that case the plaintiff testified that her deceased father, two or three months before his death, had stated to her that he had expended a lot of money for treatment and had used up his ready cash and he gave her the bonds and told her to cash them; that later she talked to her husband and he told her not to cash them and said he would give her any ready money she needed, which he did. She put the bonds away and did not take them out until about a year later. The defendants contended that the plaintiff had proved by her own testimony that she had no title to the bonds, that they belonged to her father at the time of his death, and that at the time of the...