Tolman v. Jones

• Decision Date: 15 May 1885
• Citation: 114 Ill. 147,28 N.E. 464
• Parties: TOLMAN v. JONES et al.
• Court: Illinois Supreme Court

114 Ill. 147

28 N.E. 464

TOLMAN

v.JONES et al.¹

Supreme Court of Illinois.

May 15, 1885.

Appeal from appellate court, first district; THOMAS A. MORAN, Judge.

Suit in equity by Nathaniel H. Jones and Henry L. Ware, filed against Albert E. Dike, Henry J. Dike, L. A. Dike, Warden S. Minkler, and Daniel J. Tolman. Defendant Tolman appeals from an order committing him for contempt. Affirmed.

The bill alleged that complainants and defendants were the stockholders of the Garden City Warehouse Company; that the defendants had conspired to defraud plaintiffs and the creditors of the corporation, and to convert the corporate property to their own use; that defendant Tolman had, by fraudulent means, gotten possession of a large amount of the corporate property; and that the corporation was insolvent. The bill prayed for the dissolution of the corporation, an injunction against the defendants interfering with its property, the application of its assets to the payment of its liabilities, and the appointment of a receiver. The injunction was granted, a receiver appointed, and defendant Tolman ordered to execute an assignment of the corporate property to the receiver. Tolman refused to execute the assignment before the master, and was summoned before the court, where he was ordered to execute a deed of assignment then tendered him. This he refused to do, and was committed for contempt.

Jesse Holdom and Frank J. Smith, for appellant.

John E. Burke, for appellees.

SHELDON, J.

Objection is taken to the manner of procedure in this case. It is said that a rule should have been entered to show cause, to which an apportunity should have been given to answer; that appellant was not allowed any opportunity to purge himself, or show any reason why he should not be punished for having refused to execute the assignment. Appellant was present in person before the court on the hearing of his refusal to make the assignment, made no objection to then proceeding therewith, and was fully heard, by himself and counsel, in the matter, and after such hearing he was ordered by the court to execute the assignment, and refused so to do. This was a contempt committed in the face of the court, and the court was justified in making the order of commitment without the taking of any of the preliminary steps which it is suggested should have been taken. As appellant had, by his answer under oath, denied all the charges of fraud and conspiracy, and stated that the confession of judgment was for a bona fide debt due, and that the bill of sale was executed to secure the same debt; and as the hearing on which the order of June 16, 1884, for the assignment was made, was upon the sworn bill and the sworn answer of appellant, read as an affidavit, without any other evidence.-it is insisted that upon such showing only there was no warrant for making an order taking the property transferred by the bill of sale out of the hands of appellant, and handing it over to a receiver. No such objection as this can now be taken to that order of June 16th. That was but an interlocutory order, made in the progress of the cause, for the preservation and holding of the property during the litigation, and is not the subject of appeal. Coates v. Cunningham, 80 Ill. 467;Chapman v. Hammersley, 4 Wend. 173;Forgay v. Conrad, 6 How. 201. No mere error in that order, as is that complained of as above, can now be considered, but only whether there was jurisdiction in the court to make the order. The appeal is from the order of commitment of September 27, 1884, and not from the order of June 16, 1884, for the making of the assignment.

But, then, it is said that, conceding that it was equitable, and within the scope of the bill, to enter an order upon the motion made, yet the order entered of June 16th is broader than the facts of the case, the allegations of the bill, or the disclosures made by any of the papers on file, warranted the court in making; that no allegation of the bill gave the court jurisdiction to make the order of June 16th, and therefore the court had no jurisdiction of the property ordered to be turned over by appellant to the receiver. The respect in which the order is alleged to be too broad is in the language of the second provision, ‘or otherwise, from said firm...