Union Trust Co. v. Shoemaker

• Decision Date: 05 June 1913
• Citation: 101 N.E. 1050,258 Ill. 564
• Parties: UNION TRUST CO. v. SHOEMAKER et al.
• Court: Illinois Supreme Court

258 Ill. 564

101 N.E. 1050

UNION TRUST CO.

v.SHOEMAKER et al.

Supreme Court of Illinois.

April 19, 1913.

Rehearing Denied June 5, 1913.

Error to Branch D, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Action by the Union Trust Company against Charles W. Shoemaker and others. A decree for plaintiff was affirmed by the Appellate Court (172 Ill. App. 365), and defendants bring error. Affirmed.

John T. Richards, of Chicago, for plaintiffs in error.

Kraus, Alschuler & Holden, of Chicago (M. M. Riley, of Milwaukee, Wis., of counsel), for defendant in error.

DUNN, C. J.

This case comes to this court through the allowance of a writ of certiorari petitioned for by Charles W. Shoemaker, individually and as executor of the will of Elizabeth Shoemaker, to review a judgment of Branch D of the Appellate Court for the First District affirming a decree of the circuit court of Cook county against the plaintiff in error, individually and as executor, together with Charles D. Bull, for the sum of $20,276.66, being the balance due on a judgment for $39,381.45 recovered by defendant in error on December 29, 1905, in the circuit court of Gogebic county, in the state of Michigan, against Edgar R. Van Buren and Charles D. Bull, surviving partners of Walter Shoemaker, doing business under the firm name of Antigo Lumber Company.

On December 2, 1890, Walter Shoemaker, Charles D. Bull, and Edgar R. Van Buren, partners doing business as the Antigo Lumber Company, began an action of replevin in the circuit court of Gogebic county, Mich., against Wilson R. Stubbings and John J. McLaughlin. The sheriff, under the writ, took possession of a large amount of lumber and delivered it to the plaintiffs, having first, in compliance with the Michigan statute, taken from them a bond, signed by Walter Shoemaker on behalf of himself and his partners, and by D. L. Plumer and Walter Alexanderas sureties, in the sum of $40,000, conditioned that if Shoemaker, Bull, and Van Buren should prosecute the replevin suit to effect, and if the defendants should recover judgment against the plaintiffs, then, if the plaintiffs should return the property, if the return thereof were adjudged, and should pay to the defendants all such sums as might be recovered by the defendants against them, the obligation was to be void; otherwise to remain in full force and effect. During the pendency of the replevin suit, on February 19, 1900, the defendant in error, the Union Trust Company, became the owner of the interest of the defendants in the cause of action and the property replevied, and was made a party defendant. On August 18, 1900, Walter Shoemaker died in Chicago. His death was suggested of record, and the replevin suit was afterward carried on in the name of Bull and Van Buren, as surviving partners. In December, 1905, the replevin suit was tried, and a verdict was rendered in favor of the defendant in error, finding that it was the owner of the property and entitled to the benefit of any recovery had. The defendant in error having, in accordance with the Michigan statute, waived the return of the property replevied and prayed for a judgment for its value, the damages were assessed by the jury at $39,381.45, and judgment was rendered in favor of the defendant in error for that amount. An execution was issued and returned unsatisfied, and thereupon, in pursuance of the Michigan statute, the sheriff assigned the replevin bond to the defendant in error, authorizing it and its successors and assigns to recover any amount due upon the bond.

Walter Shoemaker left a will, by which he devised the residue of his estate to his wife, Elizabeth, and his son, Charles W. Shoemaker, in equal shares. On September 28, 1900, the will was admitted to probate in the probate court of Cook county, Illinois, and letters testamentary were issued to the widow and son. Notice to creditors was published, fixing the November term, 1900, as the time for the presentation of claims. No claim was presented by the Union Trust Company or by its assignors, and no suit was brought by either against the executors prior to their discharge. On February 18, 1901, the executors filed an inventory, showing certain real estate in Ridgeland, Ill. of the value of $1,000, an undivided one-half interest in certain real estate in South Dakota, of unknown value, the other undivided one-half being owned by A. D. Marriott, who was the partner of Walter Shoemaker, and personal estate of the value of $95,000. In the enumeration of this personal estate was mentioned an undivided one-half interest in the partnership of A. D. Marriott & Co. of an estimated value of $50,000. On September 28, 1904, the final account of the executors was filed and approved, and they were ordered discharged. The widow and son took the residue of the estate in equal shares, which amounted to more than the amount here sought to be recovered. This bill to enforce the payment of the judgment was filed December 28, 1906, against Charles W. Shoemaker and Elizabeth Shoemaker, individually and as executor and executrix of the estate of Walter Shoemaker, and Charles D. Bull and Edgar R. Van Buren. In October, 1907, Elizabeth Shoemaker died, leaving a will, which was admitted to probate, in which she devised her estate to her son, Charles W. Shoemaker, and named him as executor. Letters testamentary were issued to him, her death suggested, and he was made defendant in her stead, as executor. On November 7, 1907, the defendant in error received from Plumer and Alexander, the sureties on the replevin bond, $25,000. On January 24, 1908, Van Buren was discharged in bankruptcy. The decree found that Charles W. Shoemaker, individually and as executor of the will of Elizabeth Shoemaker, and Bull were severally liable for the total amount due, and dismissed the bill as to Van Buren because of his discharge in bankruptcy, and as to Charles W. Shoemaker, executor of the will of Walter Shoemaker, because all the assets had been accounted for and paid out under the order of the probate court of Cook county.

[1] Walter Shoemaker having died before judgment in the replevin suit, no judgment was rendered against him or his estate. It is insisted that therefore the judgment was not evidence against his estate of any liability, and that the circuit court erred in considering it. The basis of this proceeding was the bond, which was conditioned for the payment of all such sums of money as might be recovered against the plaintiffs in the replevin suit. The judgment was evidence that it was recovered in that suit, and was properly received and considered as fixing the amount which the bond bound the plaintiffs to pay. The death of Walter Shoemaker did not change the liability of his estate upon the bond. That was the same as his liability would have been if he had lived. The judgment was rendered, not in favor of the original defendants or against all the original plaintiffs as individuals, but in favor of a substituted defendant and against the surviving partners only. The substitution of the defendant in error was in accordance with the statute. The plaintiff in the replevin suit was the partnership known as the Antigo Lumber Company. After Shoemaker's death the plaintiff was still in court in the person of the surviving partners. The bond was given in contemplation of the ordinary course of judicial proceedings, in which the court may permit amendments changing the parties or otherwise amending the proceedings, provided no new cause of action is introduced. The object of the bond was to indemnify the party actually interested at the time judgment should be rendered against the wrongful prosecution of that supposed cause of action, and the possible exercise of the power of amendment and substitution of parties must be regarded as within the contemplation of the obligors when it was executed. Hanna v. International Petroleum Co., 23 Ohio St. 622;Becovitz v. Sapperstein, 46 Ind. App. 339, 92 N. E. 551;Bierce v. Waterhouse, 219 U. S. 320, 31 Sup. Ct. 241, 55 L. Ed. 237.The judgment in favor of the defendant in error was a breach of the bond, for which the obligors, including the estate of the deceased principal, were bound to answer.

[2] It is contended that equity is without jurisdiction of the bill, because it is in the nature of a creditor's bill or a bill of discovery, which will not lie until the remedy at law has been exhausted by the procuring of a judgment and execution. The bill is not, however, of that character, but is an original proceeding against the estate of a deceased partner to enforce his liability upon a partnership contract, in which case the estate is primarily liable in equity, which may be resorted to in the first instance. Doggett v. Dill, 108 Ill. 560, 48 Am. Rep. 565;Mason v. Tiffany, 45 Ill. 392; Ladd v. Griswold, 4 Gilm. 25, 46 Am. Dec. 443;Nelson v. Hill, 5 How. 127, 12 L. Ed. 81.

[3] Walter Shoemaker's estate having been finally settled more than two years before the filing of this bill without any claim having been presented against his estate, plaintiff in error insists that the claim is barred by ...