Wenham v. Int'l Packing Co.
| Decision Date | 22 December 1904 |
| Citation | 213 Ill. 397,72 N.E. 1079 |
| Parties | WENHAM et al. v. INTERNATIONAL PACKING CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District.
Action by John Cichowicz against the International Packing Company. There was judgment for plaintiff, which was afterwards reversed (107 Ill. App. 234), and from an order setting aside an execution issued thereon, and the sale and certificate of purchase thereunder, and requiring plaintiff's attorney, David K. Tone, to pay to the clerk of the court for Charles F. Wenham, the purchaser, the full amount bid at the sale, the purchaser and plaintiff's attorney appealed to the Appellate Court. The order was reversed, and defendant appeals. Reversed, and order affirmed.David K. Tone, pro se.
Thomas J. Sutherland, for appellant Charles F. Wenham.
F. J. Canty and A. B. Mellville, for appellee.
On June 21, 1900, John Cichowicz brought an action on the case in the superior court of Cook county against the International Packing Company, the appellee, to recover damages for a personal injury. The defendant defaulted, and on July 10, 1900, judgment was rendered by the court for $5,000 in favor of the plaintiff. Afterwards, on July 14, 1900, leave was given the defendant to plead instanter, on payment of $100 to plaintiff's attorney and $250 to plaintiff, the said sums to be deducted from any amount subsequently recovered. It was further provided in the order that ‘the judgment heretofore entered herein of record to stand as security.’ A trial on December 24, 1901, resulted in a verdict for $3,000 in favor of the plaintiff, and, after overruling motions for a new trial and in arrest of judgment, the court, on February 14, 1902, entered judgment against the defendant, which provided that ‘the judgment entered herein of record on the 10th day of July, A. D. 1900, for the sum of $5,000, stand in as full force and effect as at the time of the rendition thereof,’ and that such judgment be satisfied in full of record upon payment of $2,650, together with interest and costs of suit. The defendant prayed an appeal from that judgment to the Appellate Court for the First District, but the appeal was not perfected.
On March 20, 1902, the plaintiff caused an execution to be issued on this judgment, and a levy was made thereunder on certain real estate in the city of Chicago which had belonged to the defendant on July 10, 1900, but which had been sold and transferred to Isadore Schmitt for an expressed consideration of $75,000, by deed dated July 18, 1900, and recorded July 23, 1900. This real estate was sold by the sheriff on July 15, 1902, under the execution and levy to Charles F. Wenham, for $2,990, and on July 23, 1902, a certificate of sale therefor was issued by the sheriff to him. On the day of sale the sheriff paid to David K. Tone, plaintiff's attorney, $2,935 in full of the judgment and interest.
On July 1, 1902, after levy but before sale, a writ of error, which did not operate as a supersedeas, was sued out of the Appellate Court for the First District to the superior court, by the International Packing Company, to review the judgment rendered against it, and on March 19, 1903, that judgment was reversed, but the cause was not remanded. International Packing Co. v. Cichowicz, 107 Ill. App. 234. On May 4, 1903, the International Packing Company, pursuant to a written notice served upon David K. Tone, as the plaintiff's attorney, and upon him individually, and upon Charles F. Wenham, presented to the superior court of Cook county its motion in writing for an order setting aside the execution, levy and sale, and certificate of purchase above mentioned, and requiring David K. Tone to pay to the clerk of the court for Charles F. Wenham, or whoever may be entitled thereto, the full amount of the bid made by Wenham at the sale. Defendant contended that the order of July 14, 1900, did not stay the judgment; that, as no execution actually issued within a year after the date of the judgment, the lien was lost; and that, as the deed to Schmitt conveyed all the title held by defendant, Wenham took nothing by the sale and certificate of purchase, and the relief sought by the motion should be awarded. The motion was accompanied by affidavits setting out the facts heretofore recited in this statement, and also averring that no execution was issued on the judgment within one year from July 10, 1900, and that plaintiff was not restrained by injunction, appeal, or by the order of a judge or court, nor was he delayed on account of the death of the defendant, from issuing execution on the judgment between July 10, 1900, and March 20, 1902. It is also stated in the affidavits, upon information and belief, that David K. Tone, on July 15, 1902, was claiming to be the owner of the judgment; that the $2,990, less costs of sale, was paid to him; and that he still holds in his possession and under his control the amount so paid to him by the sheriff.
At the hearing of the motion, David K. Tone appeared in court in his own behalf and for and on behalf of Cichowicz and Wenham, and objected to the jurisdiction of the court to enter any order affecting the rights of any of the parties. A hearing was had on the motion, appellee herein introducing the documentary evidence of the proceedings in the cause and the affidavits hereinabove referred to, which was all the evidence heard on said motion, and the court thereupon entered an order overruling the motion of the defendant. The packing company appealed from that order to the Appellate Court for the First District, and that court, after stating, in its opinion, that the motion should have been allowed, reversed the order of the superior court, and remanded the cause for further proceedings in conformity with that opinion. It also awarded costs against Cichowicz, Wenham, and Tone. This appeal is prosecuted by the two lastnamed persons to present for review the judgment of the Appellate Court.
It is here insisted that the Appellate Court erred in reversing the order of the superior court and remanding the cause, because the order of July 14, 1900, stayed execution until the entry of the judgment of February 14, 1902, and the execution, excluding the time between those dates, was issued within a year from the rendition of the judgment.
In the superior court the parties submitted propositions of law, and the action of that court in passing upon such propositions properly presents the question arising on the merits, which is discussed in the following opinion.
A preliminary question is brought to our attention by a motion made in this court by the...
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