Singer v. Hutchinson

• Decision Date: 19 February 1900
• Citation: 183 Ill. 606,56 N.E. 388
• Parties: SINGER et al. v. HUTCHINSON et al.
• Court: Illinois Supreme Court

183 Ill. 606

56 N.E. 388

SINGER et al.

v.HUTCHINSON et al.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, First district.

Creditors' bill by Dillon B. Hutchinson and others against Edward T. Singer and others, stockholders of the Singer & Talcott Stone Company. Judgment for plaintiffs was affirmed by the appellate court (83 Ill. App. 675), and defendants appeal. Affirmed.Ira W. & C. C. Buell (A. B. Jenks, of counsel), for appellants.

Barnum, Mott & Barnum (T. A. Moran, of counsel), for appellees.

This is an appeal from a judgment of the appellate court affirming a decree rendered on a creditors' bill filed by appellees January 7, 1898, against the Singer & Talcott Stone Company and others, as defendants, to reach the assets of the Singer & Talcott Stone Company in the possession of the defendants, as stockholders. Edward T. Singer, Charles G. Singer, Walter Singer, Harriet A. Singer, Charles B. Kimball, Spencer Kimball, and the Singer & Talcott Stone Company were made defendants to the bill. All defendants were served with process, except Walter Singer and Charles B. Kimball, in respect to whom process was returned, ‘Not found.’ On the hearing the bill was dismissed as to Walter H. Singer, Harriet A. Singer, Charles B. Kimball, and Spencer Kimball. Answers were filed by Edward T. Singer, Charles G. Singer, Harriet A. Singer, and Spencer Kimball; Harriet A. Singer denying that she ever was a stockholder in the Singer & Talcott Stone Company, or ever had anything to do with its management, and Spencer Kimball averring that in the year 1875 he sold all his stock in the corporation, and that since said time he has had no interest in the corporation, or any knowledge of its affairs. The Singer & Talcott Stone Company failing to appear and plead, answer, or demur, a decree pro confesso was taken against it.

The evidence shows that June 12, 1897, a judgment was rendered in the superior court of Cook county in a suit at law brought January 21, 1893, in which appellees were plaintiffs and the Singer & Talcott Stone Company was defendant, in favor of appellees, for the sum of $15,496.33 and costs; that August 10, 1897, an execution was issued on said judgment, which execution was returned by the sheriff November 8, 1897, ‘No property found.’

The complainants read in evidence the following from the joint and several answer of Edward T. Singer and Charles G. Singer, which answer was verified by the joint and several affidavit of the said defendants: ‘These defendants allege the facts to be that from the time of the expiration of the charter of the company, and for several years before, it, the said corporation, had no property whatever, except the piece of real estate in said bill mentioned, and admitted to have been sold; all of the other property that had ever belonged to said corporation having before that time been disposed of, and the proceeds thereof having been distributed among its stockholders in accordance with their respective rights. The defendants further allege the fact to be that on January 3, 1893, for the purpose of disposing of all the property of said corporation and absolutely winding up the affairs of said corporation, and distributing among its stockholders, according to their respective rights, all of the assets of said corporation, the said real estate was sold and disposed of; and defendants admit that on or about the 3d of January, 1893, the Singer & Talcott Stone Companyconveyed to one Charles A. Chapin the property in said bill described, for the consideration of $509,178, which consideration was received partly in money and partly in promissory notes secured by mortgages on divers pieces of real estate, and said deed of conveyance was executed on behalf of said company by Edward T. Singer, as president, and Charles G. Singer, as secretary, of said company. And these defendants, further answering, aver: That said consideration for said conveyance was received by these defendants for the Singer & Talcott Stone Company, and the entire net proceeds thereof were immediately thereafter, and on or about the 6th day of January, 1893, distributed to and among the several stockholders of said company in proportion to the amount of stock in said company held by said stockholders, respectively: To this defendant Edward T. Singer, $130,500; to this defendant Charles G. Singer, $55,000; to Walter H. Singer, $88,500; to Horace M. Singer, now deceased, $17,000; and to these defendants Edward T. Singer, Charles G. Singer, and Walter H. Singer, jointly, as trustees, and in trust to pay the income thereof to Harriet Singer so long as she shall live, $203,637,-the capital stock of said company consisting of three hundred shares, of $100 each. Before having been divided, the same was held as follows: Said Edward T. Singer, eighty shares; said Walter H. Singer held fifty-five shares; the said Charles G. Singer held thirty-five shares; Horace M. Singer, now deceased, held ten shares; the said Edward T. Singer, Charles G. Singer, and Walter H. Singer held as trustees, jointly, one hundred and twenty shares. That the persons so named as receiving said proceeds of said sale constituted the sole and only stockholders of said corporation at the time of said distribution and at the time of the expiration of its charter as aforesaid, and for several years prior to that time. These defendants, further answering, admit that they claim, and they aver that it was true in fact, that the Singer & Talcott Stone Companyis and was a dissolved corporation, and that such dissolution occurred before and without the payment of any such sum of money whatever to said complainants; that said defendants took no notice, and were not bound to take any notice, of said supposed judgment, and they allege that said supposed judgment did not exist at the time of the dissolution of said corporation, or for many years thereafter, and that, also, at the time of the said distribution of the proceeds of the consideration of said conveyance above set forth, no claim had been made by said complainants, or either of them, upon said corporation, its officers or agents. And they deny that there was any sum of money due or to become due from said corporation to said complainants, or either of them, on account of services in making such sale, or upon any other account whatever. And they deny that during the life of said corporation, or prior to its dissolution as aforesaid, said complainants, or either of them, had or pretended to have any claim of demand against said corporation. And, on information and belief, they deny that the Singer & Talcott Stone Company at any time since the expiration of its charter as aforesaid had any corporate existence, or capacity, by statute or otherwise, to be sued by said complainants. And they allege the fact to be that if there is or was any statute whatever which continued the capacity of said corporation after the 20th of April, 1892, for the purpose of being sued, such suit could be maintained under such statute only upon a claim that existed against said corporation at the date last aforesaid, and that such complainants had not at that date, or at any time prior thereto, any claim whatever against said corporation, or its corporate assets or trust funds, still liable to be sued, prosecuted, or followed in this proceeding by said complainants for the payment of said proposed judgment. And they deny that the other defendants herein, or either of them, are liable to be sued or prosecuted as aforesaid. And they deny that good or proper service upon said corporation was made in this cause, and allege that owing to its dissolution, as above set forth, no proper service could be made upon said corporation at or since the time of the commencement of this suit.’

Complainants called as a witness appellee William W. Post, who testified, in substance, that he and Hutchinson, the complainants in the present bill, were the plaintiffs in the suit in which the judgment above mentioned was recovered, and that no part of the judgment had been paid. The witness was also examined, and testified at considerable langth, as to the facts on which the judgment was recovered. Subsequently, and before complainants closed their evidence, the court excluded all of Post's evidence which did ‘not go simply to identify the cause and the parties'; meaning, presumably, to let stand only that part of the testimony showing that the complainants in the bill were the plaintiffs in the judgment. Appellees also put in evidence the articles of incorporation of the Singer & Talcott Stone Company, and a warranty deed from that company to Charles A. Chapin, of Niles, Mich., of date January 3, 1893, for the consideration of $509,178, of lots 29 to 33, both inclusive, except the north 10 feet of lot 33, lying west of the east 35 feet thereof, in block 89, School Section addition to Chicago, county of Cook, and state of Illinois, signed by Edward T. Singer, as president, and Charles G. Singer, as secretary, and impressed with the corporate seal of the Singer & Talcott Stone Company.

The defendants (appellants here) offered evidence tending to show that the appellees were not entitled to recover in the action at law,-in other words, such evidence as might have been admissible in that suit,-which evidence the court excluded.

The ordering part of the decree is as follows: ‘It is therefore ordered and decreed by the court that the bill of complaint herein be, and the same is hereby, dismissed without prejudice as to the defendant Harriet A. Singer; and it is further ordered, adjudged, and decreed by the court that the defendants Edward T. Singer and Charles G. Singer and the Singer & Talcott Stone Company pay to the complainants Dillon B. Hutchinson and William W. Post, for the use of said Post, within ten days from this date, $16,639.66, with lawful interest thereon from date until paid, and the costs of this suit to...