Stempel v. Thomas
| Decision Date | 30 June 1878 |
| Citation | 89 Ill. 146,1878 WL 9988 |
| Parties | BERNHARD STEMPELv.CHARLES W. THOMAS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
This was a suit originating before a justice of the peace, brought by Charles W. Thomas against Bernhard Stempel, to recover back money paid by the former, as master in chancery, to the latter, in excess of what was his share in moneys realized on the sale of lands in a proceeding for partition.
Mr. WILLIAM WINKELMAN, for the plaintiff in error.
Mr. CHARLES W. THOMAS, pro se.
This was an agreed case, decided in the court below. The following are the facts which the parties stipulate to be true and upon which the judgment was rendered:
In July, 1871, some of the Stempel heirs, of whom defendant in this suit was one, filed a bill for partition and relief, in the St. Clair circuit court, against others of said heirs. There was litigation as to one share, and decree that advancement had been made to one heir, and that the land should be sold by the plaintiff herein, who was at the time master in chancery of said county, and that out of the proceeds the master should pay the costs and charges attending the sale, and those of the partition suit, and bring the balance into court. At the March term, 1872, the master reported the sale, and that he had paid certain costs and charges attending the suit and sale, among the items of which costs and charges were solicitors' fees to Underwood & Nœtling, complainants' solicitors, $500, and to Hay & Knispel, defendant's solicitors, $250, and that he brought the balance into court for the further order thereof. The court approved the report and ordered it to be recorded; and, at the March term, 1873, the court entered a final decree, ordering “that the master apply the proceeds of said sale to the payment of the costs of this suit, and pay over the residue to the parties to this bill, according to their respective interests in the estate of said deceased, tenants in common as heirs at law, as heretofore found in the decree of court,” of which defendant in this suit was one. Plaintiff in this suit, by mistake, overpaid defendant $54.97, and upon receiving his money as distributee, defendant receipted to plaintiff, as master, for his share of said proceeds in full, defendant having at the time no actual notice of the payment of said amount to the solicitors. The said master, when he made the payment, first deducted from total proceeds of sale all costs and charges paid as aforesaid, including $750 as paid to solicitors. Plaintiff, ascertaining the mistake, sued to recove the $54.97 so overpaid; and defendant claims a set-off of one-sixth the amount of $750 paid to solicitors by plaintiff, as master. Before bringing the partition suit, the Stempel heirs, complain...
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