State Bank of St. Charles v. Burr

• Decision Date: 10 October 1939
• Docket Number: No. 25148.,25148.
• Citation: State Bank of St. Charles v. Burr, 372 Ill. 114, 22 N.E.2d 941 (Ill. 1939)
• Parties: STATE BANK OF ST. CHARLES v. BURR et al.
• Court: Illinois Supreme Court

372 Ill. 114

22 N.E.2d 941

STATE BANK OF ST. CHARLES

v.BURR et al.

No. 25148.

Supreme Court of Illinois.

Oct. 10, 1939.

Proceeding by the State Bank of St. Charles against James H. Burr and another to foreclose trust deeds on real estate, wherein the named defendant filed a counterclaim and, after a decree of foreclosure was entered, defendants filed petitions to vacate a portion of the decree of foreclosure which offset the judgment on the counterclaim against the balance due on the mortgage indebtedness and to set aside a master's sale of the mortgaged property and for other relief.From a decree denying the prayers of both petitions, James H. Burr and another appeal.

Affirmed in part, reversed in part, and remanded.Appeal from Circuit Court, Kane County; William J. Fulton, judge.

C. Sidney Van Duzer, of Chicago, for appellants.

D. A. Green, of St. Charles, and John K. Newhall, of Aurora, for appellee.

FARTHING, Justice.

On November 9, 1938, appellantJames H. Burr, filed a petition in a foreclosure suit in the circuit court of Kane county in which he was a defendant.A decree of foreclosure entered on October 22, 1936, had been affirmed by the Appellate Court.State Bank of St. Charles v. Burr, 295 Ill.App. 15, 14 N.E.2d 511.The petition alleged that on February 13, 1936, the State Bank of St. Charles filed its complaint to foreclose certain trust deeds on real estate; that Burr filed an answer and a counter-claim on which he demanded a jury trial.The issues on the counterclaim were transferred to the law docket and were tried by a jury, resulting in a verdict for Burr for $8,000.A motion for new trial was overruled and on October 15, 1936, judgment was entered on the verdict.In the foreclosure decree the judgment of $8,000 was allowed as a credit and deducted from the mortgage indebtedness of $39,201.35 and was decreed to be satisfied.The decree awarded foreclosure for the balance of $31,201.35.The petitioner represented that the court was without jurisdiction to decree the set-off of the judgment against the amount found due the plaintiff in the foreclosure suit or to decree the judgment satisfied; that the set-off and satisfaction of the judgment for $8,000 was, in effect, the rendition of a personal judgment for money against petitioner in a foreclosure proceeding and was wholly extra-judicial; that such lack of jurisdiction was apparent from the face of the record; that the set-off was not made pursuant to the prayer of the complaint or counter-claim or pursuant to anything appearing in the pleadings when the decree was entered; and that no amendments were made to make the pleadings correspond to the relief granted.The petition prayed that this part of the decree be expunged and the judgment on the counter-claim be declared to be in full force and effect.James H. Burr and Annette Burr perfected an appeal to the Appellate Court for the Second District from the decree of foreclosure and James H. Burr perfected a separate appeal from the judgment on the counter-claim.The contention that the court had no power to set off the judgment for the counter-claim against the amount due on the mortgage and to declare the judgment satisfied was overruled after full consideration by the Appellate Court.State Bank of St. Charles v. Burr, supra.Thereafter we denied leave to appeal.295 Ill.App. xxvi.

On November 14, 1938, while their first petition was still undisposed of appellants filed a second petition alleging that within twenty days from the entry of the decree of foreclosure, they filed their notice of appeal and proof of service, and within thirty days from the entry of that decree the court entered an order fixing the amount and terms of an appeal bond and extended time for filing it and authorized the clerk of the court to approve the security thereon.The bond was fixed at $250, conditioned that appellants should prosecute the appeal and pay the costs in case the decree appealed from should be affirmed.Notice was given and the bond was filed within the extended time, on December 3, 1936.The petition alleges that after the filing and approval of the appeal bond and while the case was pending in the Appellate Court, the master in chancery advertised the premises described in the decree for sale and on January 6, 1937, sold them to the appellee, the State Bank of St. Charles.It was alleged that the filing and approval of this appeal bond made the notice of appeal a supersedeas, but that the master's sale was made in violation of the supersedeas and without authority in law.The report of sale was alleged to have been approved on January 29, 1937, without notice to petitioners.A master's deed was issued on April 22, 1938, and filed for record June 9, 1938.The prayer of this petition was that an order be entered setting aside the master's sale, the order approving his report of sale and distribution, and canceling the certificate of sale and deed.

Appellee filed motions to strike both petitions.The motion to strike the first petition was based on the contention that the matters set up in that petition were res judicata.The motion to strike the second petition charged that appellants never gave notice of their intention to ask that the notice of appeal be made a supersedeas by the giving and filing of a supersedeas bond, and that the bond filed did not operate as a supersedeas and was of no legal effect as a supersedeas bond.Appellee had asked for a writ of assistance on November 4, 1938.The court denied the prayer of both petitions, allowed the motions to strike them and awarded the writ of assistance.This appeal was perfected directly to this court.

Appellants contend that the trial court was without jurisdiction to decree that the $8,000 judgment entered on the counter-claim was a proper offset against the amount found due on the mortgage indebtedness.They claim that this amounts to the entry of a personal decree against the mortgage debtor before the property is sold, in violation of section 16 of the statute on...