Tudor v. Firebaugh
| Decision Date | 14 October 1936 |
| Docket Number | Gen. No. 23479. |
| Parties | TUDOR v. FIREBAUGH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Edward O. Tudor against Russell Firebaugh. From an order of the Appellate Court affirming a decretal order of the Superior Court adjudging defendant guilty of willful contempt of court, defendant with Supreme Court's permission appeals.
Orders of Superior and Appellate Courts reversed.Appeal from Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; John C. Lewe, Judge.
William Sherman Stahl, of Chicago, for appellant.
Maxwell L. Rubin, of Chicago, for appellee.
This court granted leave to appeal from the judgment order of the Appellate Court for the First District affirming a decretal order of the superior court of Cook county adjudging appellant guilty of willful contempt of court for failure and refusal to pay to appellee, as successor trustee, the sum of $14,629, as decreed on July 5, 1934, and ordering him confined in the county jail until said sum is paid.
May 15, 1925, Antonio Bondi and wife and others executed a trust deed conveying to appellant, as trustee, property known as the northwest corner of Central avenue and West Adams street, Chicago, to secure a bond issue of $170,000. On February 1, 1930, appellant, as trustee under said trust deed, took possession and operated and managed the property until January 14, 1933, during which time he collected $51,496.75 of the rents, issues, and profits of said property. On January 20, 1933, he resigned as trustee and surrendered possession of the premises to E. Ray Grant as his successor trustee. On February 7, 1934, Grant, as successor trustee, filed a complaint alleging that appellant had refused to account for the rents, issues, and profits of said premises to the amount of $14,629 collected by him as such trustee, and prayed that appellant be required by decree to pay to appellee that sum, and that the court by appropriate orders compel such payment. Appellant answered, alleging that as trustee under said trust deed he had declared the entire amount, principal, and interest, secured by said trust deed to be in default, and that he, as trustee, by and through the Bond & Mortgage Company, his depositary agent under the terms of the trust deed, entered into possession of said premises and continued in possession thereof, all as he was authorized by the trust deed to do, until January 17, 1933, when the superior court of Cook county, under a petition to foreclose the trust deed, appointed Frank J. Spencer receiver for said real estate; that the rents and issues collected by the Bond & Mortgage Company as his agent and depository were deposited with the Bond & Mortgage Company pursuant to the terms of the trust deed and by said company deposited in the Continental Illinois National Bank & Trust Company; that under a proceeding in the United States District Court for the Northern District of Illinois, Chester A. Willoughby was appointed receiver for the said bond and mortgage company, and by order of that court the $14,629.95 deposited by said Bond & Mortgage Company in the Continental Illinois National Bank & Trust Company was turned over to Willoughby as receiver; that appellee, as successor trustee, filed an intervening petition in said United States District Court claiming said sum of $14,629 as successor in trust to appellant, and that said intervening petition is still undetermined. After a hearing the chancellor entered a decree finding that appellant was and is acting in a fiduciary capacity toward the beneficiaries of the trust; that he has retained and failed to account for, as trustee under said trust deed, the sum of $14,629; that he is unable to pay his just debts in the ordinary course of business and is insolvent, and that Logan L. Mullins was appointed receiver for the property of appellant. The decree ordered that appellant, individually and as trustee pay or cause to be paid to appellee, within ten days, the sum of $14,629, with interest at 5 per cent. from February 28, 1933, and with costs. The chancellor reserved jurisdiction for the purpose of enforcing the decree by means of every appropriate remedy and process and for the purpose of punishing appellant as for contempt of court in the event of his failure, neglect, or refusal to perform or obey the same. On August 4, 1934, appellee filed his petition for a citation against appellant to require him to show cause why he should not be adjudged in contempt of court for failure to pay appellee said sum of $14,629. An order to show cause within seven days was entered. Appellant answered the petition, alleging that he had no money with which to make payment of said $14,629, with interest and costs, or any part or portion thereof; that he did not have at the time of the entry of the decree, and had not since, any money or funds with which to make payment and is unable to obtain the money, and that he owns no property out of which he could realize any money with which to make payment. He listed what property he owned, and offered to turn over the same to any person the court might direct. He also set up the collection of said $14,629 by the Bond & Mortgage Company, the appointment of a receiver for said Bond & Mortgage Company and jurisdiction over it by the United States District Court, and denied that he at any time had said $14,629. He alleged that he permitted the said Bond & Mortgage Company to collect the rents under the belief, supported by the opinion of his attorneys, that under the terms and provisions of the trust deed said Bond & Mortgage Company was authorized to receive the rents, issues, and profits from said premises, after condition broken, as agent for the holders of the bonds for which said trust deed was given as security. He alleged that the court erred in entering a decree requiring him to pay said sum; that he had served notice of appeal; that he had not willfully failed and refused to comply with said decree, and that his failure to comply therewith was due to the fact that it was impossible for him to perform. The chancellor found and adjudged appellant guilty of willful contempt of court by reason of his refusal to obey said decree of July 5, 1934, and committed him to the common jail of Cook county until he paid said sum of $14,629 as required by said decree or until he is otherwise discharged by due process of law. The Appellate Court affirmed the order.
To reverse the judgment of the Appellate Court and the order of commitment of the superior court appellant urges...
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