The Int'l Bank v. Jenkins

• Decision Date: 06 March 1884
• Citation: 1884 WL 9785,109 Ill. 219
• Parties: THE INTERNATIONAL BANK et al.v.R. E. JENKINS, Assignee, et al.
• Court: Illinois Supreme Court

109 Ill. 219

1884 WL 9785 (Ill.)

THE INTERNATIONAL BANK et al.

v.R. E. JENKINS, Assignee, et al.

Supreme Court of Illinois.

Filed at Ottawa Mar. 6, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on writ of error to the Circuit Court of Cook county; the Hon. WILLIAM BROWN, Judge, presiding.

Messrs. ROSENTHAL & PENCE, for the plaintiffs in error.

Mr. W. T. BURGESS, and Mr. A. CRAWFORD, for the defendants in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill brought by Augustus Bauer, on the 29th day of August, 1874, against Samuel J. Walker and others, to foreclose certain trust deeds on different tracts of land in Cook county, which had been pledged as collateral security for the payment of certain notes executed by Walker, and payable to the International Bank, for moneys loaned. Various persons who had an interest in the mortgaged premises (in all about one hundred) were made parties defendant to the bill. Among others, Williams & Thompson, who claimed to have purchased a part of the mortgaged property, known as block 28, were made defendants to the bill. Miller & Leibenstein, who held a trust deed on a certain other part of the mortgaged premises, were also made defendants. They filed a cross-bill to foreclose a trust deed held by them, and made Russell M. Larned, who claimed to own the premises described in the trust deed, a party thereto. Walker put in an answer to the bill, in which he set up various transactions between him and the bank, and divers loans of money by the bank to him, and that all of the loans were at usurious rates of interest, and that the assignment of the notes to Bauer was not made in good faith, but to cover up such usurious interest; that Bauer was a stockholder in the bank, and had notice of the usurious dealings. Walker called for an accounting between him and the bank, and that all usurious payments should be allowed, which, if done, would, as he claimed, pay all the notes held by the bank, Bauer, or any other person under the bank. Walker also filed a cross-bill. Most of the other defendants put in answers to the bill, and the court, on the hearing, on the pleadings and evidence, entered an interlocutory decree, in which it was, among other things, found that neither Walker nor any of the other parties are entitled to any set-off or deduction to any of the principal notes on the ground of usury, and the master, to whom the cause was referred to state the account, was directed not to consider the question of usurious payments of interest upon any of the notes. After the coming in of the report of the master, and on the 25th day of April, 1878, a final decree was rendered granting relief upon the original bill of Bauer as to all property embraced in it. The court, however, held that the $15,000 note and trust deed on block 28 had been released, and were no longer a lien, and that neither Bauer, Kohn & Bros., nor the bank, had any interest in said block, and the bill was dismissed as to this block. The court also dismissed the cross-bill of Miller & Leibenstein, in which they sought to foreclose a trust deed on a tract of land claimed by Russell M. Larned, holding that the tract so claimed by Larned had been released from the trust deed.

On April 26, 1878, Walker filed his petition to be adjudged a bankrupt. After he was adjudged a bankrupt, and on June 18, 1878, he sued out from the Appellate Court a writ of error to reverse the decree of the circuit court which had been rendered in the case of Bauer v. Walker et al. On the 18th day of October, 1879, Bauer and others filed a plea in bar of the writ of error, claiming that Walker had no right to sue out or prosecute a writ of error, after he was adjudged a bankrupt, to reverse a decree rendered before he was a bankrupt. After this plea was filed, Jenkins, assignee of Walker, entered a motion in the Appellate Court to substitute the assignee in place of Walker, with leave to prosecute the writ of error. This motion the court allowed. On the 14th day of June, 1881, the Appellate Court rendered a judgment in the cause, in which the decree of the circuit court was affirmed as to block 28, which was claimed by Williams & Thompson, and also affirmed the decree as to the Larned tract. Every other portion of the decree was reversed, and the cause remanded. From this judgment Miller & Leibenstein appealed to this court, and the judgment of the Appellate Court as to the Larned tract was reversed, and the cause remanded. ( Miller v. Larned, 103 Ill. 562.) After the decision was announced in the case last cited, this writ of error was sued out by the International Bank and Augustus Bauer, to reverse the decision of the Appellate Court rendered on the 14th day of June, 1881.

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