Tegtmeyer v. Tegtmeyer

• Decision Date: 20 December 1937
• Docket Number: Gen. No. 39672.
• Citation: 292 Ill.App. 434,11 N.E.2d 657
• Parties: TEGTMEYER ET AL. v. TEGTMEYER.
• Court: United States Appellate Court of Illinois

292 Ill.App. 434

11 N.E.2d 657

TEGTMEYER ET AL.

v.TEGTMEYER.

Gen. No. 39672.

Appellate Court of Illinois, First District, First Division.

Dec. 6, 1937.

Rehearing Denied Dec. 20, 1937.

Appeal from Circuit Court, Cook County; Joseph Burke, Judge.

Suit by William H. Tegtmeyer and another against Daisy C. Tegtmeyer, wherein defendant was committed to the custody of the sheriff of Cook county pursuant to a contempt order. Judgment denying defendant's petition for release, and defendant appeals.

Affirmed.

Charles S. Harvey, of Chicago, for appellant.

G. L. Wire, of Chicago, for appellees.

O'CONNOR, Presiding Justice.

By this appeal Daisy C. Tegtmeyer seeks to reverse an order entered by the circuit court of Cook county June 17, 1937, sustaining plaintiffs' motion to dismiss her petition whereby she sought to be released from the custody of the sheriff of Cook county, who was holding her by virtue of a writ of ne exeat and a mittimus issued pursuant to a contempt order.

The record discloses that in 1925 plaintiffs filed their bill in equity in the circuit court of Cook county whereby they sought to compel defendant, Daisy C. Tegtmeyer, to account for $4,000 trust funds and any profits derived from the investment thereof. The case was heard on March 18, 1930, and a decree was entered in plaintiffs' favor, from which an appeal was prosecuted to this court, where the decree was affirmed. Tegtmeyer v. Tegtmeyer, 259 Ill.App. 661 (Abstract). A further appeal was prosecuted to the Supreme Court where on April 23, 1932, the judgment was affirmed. Tegtmeyer v. Tegtmeyer, 348 Ill. 434, 181 N.E. 297. After the affirmance the cause was referred to a master in chancery to take the account, and on June 12, 1933, plaintiffs filed their petition praying, among other things, that a writ of ne exeat republica issue that defendant might be stayed from departing out of the jurisdiction of the court. Bail was fixed at $30,000. The writ was issued on the day the petition was filed and commanded the sheriff to summon the defendant to appear before the circuit court of Cook county on the first day of the July term of court, which began the third Monday of July (July 17). The sheriff was further commanded that unless defendant gave bail he should commit her to the common jail of Cook county; having failed to give bail she was taken into custody July 27, 1933, and was confined until July 21, 1937.

In the meantime, defendant refused to turn over certain property of the value of more than $30,000 to the receiver theretofore appointed by the court. She also refused to answer proper questions put to her on the hearing before the master, as a result of which the court on January 5, 1934, entered an order by which she was adjudged to be in contempt of court, and it was ordered that she stand committed to the county jail of Cook county, there to remain and be held until she delivered the property to the receiver and answered the questions. July 21, 1937, this court ordered that the appeal operate as a supersedeas in the ne exeat proceeding upon defendant giving bond for $5,000, and also that the appeal operate as a supersedeas in the contempt proceeding upon defendant entering into a bond for $2,000, and such bonds having been approved by the court July 21, 1937, defendant was released from the custody of the sheriff.

The chancery case which was instituted in 1925 is still pending, and, from that date to the present, plaintiffs have been seeking to compel defendant to render an account. Throughout the pendency of the suit divers and sundry proceedings have been had; defendant having filed petitions for writs of habeas corpus and other petitions and motions, seeking to be released from jail. A countermotion was filed by plaintiffs by which defendant was enjoined from filing such petitions. Neither party has rested on its oars, but the battle has been continuous throughout the years.

From what we have said it is obvious that a detailing of the facts and numerous proceedings is unnecessary. Many of the facts will be found in the opinions of this court and of the Supreme Court. We mention but a few of them. Defendant and her husband invested $18,000, which included the $4,000 in question, in Chicago real estate; the husband afterward died and she sold the property for more than $46,000. She invested the money in various stocks, including the Commonwealth Edison Company, Middle West Utilities, and the American Telephone & Telegraph Company; $10,000 was also placed in escrow with the Chicago Title & Trust Company, in connection with the guaranteeing of the title to the real estate by that company when the property was sold. After the affirmance by the Supreme Court ordering the defendant to account, the cause was remanded, and on October 25, 1932, referred to a master in chancery. Five days thereafter defendant sold 200 shares of the American Telephone & Telegraph company stock for $20,801.77 and 137 shares of Commonwealth Edison Company stock for $9,728.56, or a total of $30,530.33. This was found by the contempt order to constitute a part of the trust fund. August 25, 1933, the court entered an order requiring her to turn over the $30,530.33 and other property to a receiver theretofore appointed. Afterward the receiver made a demand upon her, which was unavailing. The contempt order finds that defendant has failed to show cause why she should not deliver the moneys and property to the receiver, and that she “was and is able to bring into court and deliver and surrender to the National Builders Bank of Chicago, as receiver, * * * the said moneys and property, and her failure and refusal to surrender and deliver said moneys and property is a wilful and contumacious refusal * * * to comply with the order” of the court. No appeal has been taken from the order of contempt, although it was appealable. Hill v. Thomas B. Jeffery Co., 292 Ill. 490, 127 N.E. 124.

[2] In the verified petition filed by defendant June 10, 1937, by which she sought to be released from jail, it is alleged that she is now and has been continuously confined in jail since July 27, 1933, and that she is held by the sheriff by virtue of the writ of ne exeat (by reason of her failure to give bond for $30,000); that the writ was made returnable to the July, 1933, term of the circuit court of Cook county which commenced July 17, 1933; that it was not served on defendant until July 27, 1933, ten days after the commencement of the July term; that at the time of such service the “Writ had expired, and become void by its own terms and was ‘functus officio,’ ” and therefore she is wrongfully held by virtue of such writ. It is further alleged in the petition that the sheriff was also detaining defendant by virtue of the contempt order of January 5, 1934; that the order was “vicious and void, and in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and to the Bill of Rights contained in the Illinois State Constitution, in that it contains no definite term for the detention and imprisonment of” defendant; that the contempt order was entered at the request of plaintiffs in an attempt to enforce the terms of the decree of 1930 (above mentioned) “for their own exclusive gain and benefit”; that defendant's health has been greatly undermined by her continuous confinement in jail for almost four years; “that she has lost 50 pounds in weight, has developed chronic myocarditis, bronchitis and arrested tuberculosis and anemia and any further confinement will seriously endanger her very existence”; that even if the order and mittimus issued in pursuance thereof were valid at the time the order was entered, they have since become “void for the reason that” defendant “has been severely punished for any alleged contempt,” and to prolong her imprisonment pursuant to the contempt order will be a violation of the Eighth and Fourteenth amendments of the United States Constitution.

Defendant contends: (1) That the writ of ne exeat in this state is “in the nature of a summons and is so regarded by the Statute, and is for the purpose of obtaining equitable bail and insuring the presence of the defendant within the jurisdiction of the Court”; that the writ was issued on June 12, 1933, returnable July 17, 1933, but was not served on defendant until July 27, 1933, and therefore the writ was void at the time of its service on defendant. In support of this Draper v. Draper, 59 Ill. 119, and O'Brien v. Haynes, 61 Ill. 494, are cited.

The Draper Case was a suit for divorce. Upon the bill being filed, the summons was issued returnable after the first Monday of the October following. It was returned by the sheriff October 3, “not found.” Prior to that time, on September 5th, a second summons was issued, also returnable to the first Monday of October. The sheriff served this last summons October 13th. The court there said (at page 120 of 59 Ill.): “The service on the second summons * * * was insufficient to confer jurisdiction. It was not served until ten days after the return day. The writ had then no vitality; it had spent its force, and the service was a nullity. * * * There being no service, and no appearance by the defendant * * * that court did not have jurisdiction to pronounce the decree that it did,” and the decree was reversed. In the instant case it is not necessary for us to pass upon the validity of the service because, unlike the Draper Case, defendant here entered her appearance and filed her verified answer to the petition.

In O'Brien v. Haynes, 61 Ill. 494, which was an action of replevin, it was also held that where a summons is served after the return date the service will be a nullity and will not give the court jurisdiction of the person of the defendant. But in that case the defendant employed counsel who filed a plea and it was held that: “All defects and irregularities in the service, if any existed, were cured by the plea.” We think it obvious...