Williams v. Williams

• Court: Illinois Supreme Court
• Writing for the Court: HAND
• Citation: Williams v. Williams, 221 Ill. 541, 77 N.E. 928 (Ill. 1906)
• Decision Date: 07 June 1906
• Parties: WILLIAMS v. WILLIAMS.

221 Ill. 541

77 N.E. 928

WILLIAMS

v.WILLIAMS.

Supreme Court of Illinois.

April 17, 1906.

Rehearing Denied June 7, 1906.

Error to Superior Court, Cook County; M. Kavanagh, Judge.

Action by Charles M. Williams against Levi E. Williams. Decree for complainant, and defendant brings error. Affirmed.

Dolph, Buell & Abbey and John T. Dale, for plaintiff in error.

James C. Hood, for defendant in error.

The complainant filed a bill in chancery in the superior court of Cook county against the defendant for the adjustment of a partnership account alleged to remain unsettled between them, and to require the defendant to convey to him the undivided one-half of certain real estate situated in Cook county, alleged to belong to the copartnership, the title of which was in the defendant. Service was had upon the defendant, who was a nonresident, by delivering to him a notice of the commencement of the suit and a copy of the bill, and, the defendant not appearing, he was defaulted and the bill was taken as confessed as to him, and the cause was referred to a master to take the proofs and report his conclusions. The master filed a report, in which he found that the complainant and defendant formed a copartnership on the 20th day of April, 1901, which was terminated on the 1st day of September, 1904, for the purpose of engaging in the sale and exchange of real estate, their agreement being that in each and every transaction in which real estate was conveyed through the agency of said copartners, either by sale or exchange, or both, each of the partners should be entitled to and should receive as his share of the commissions for his services, one-half of the whole amount of the commissions earned by both parties, except on such deals as might involve the separate property of the defendant, and as to those deals the complainant was to receive as his commissions such amount as should especially be agreed upon between the parties; that the complainant and defendant made numerous sales and exchanges of real estate and earned a large amount as commissions; that the defendant held the title to 108 unimproved lots situated in the county of Cook, which had been earned by the copartners as commissions, in trust for the copartners, and that the copartners had earned the sum of $6,700 as commissions which were in the hands of the defendant, one-half of which should be paid by him to the complainant; and recommended that the court enter a decree directing the defendant to convey the undivided one-half interest in said lots to the complainant and pay to the complainant the sum of $3,350 in cash. The report of the master was approved, and the court entered a decree that the defendant convey to the complainant an undivided one-half interest in said lots within five days, and that in default the master execute said conveyance, and found there was due the complainant the sum of $3,350 from the defendant, and ordered the defendant to pay that sum to the complainant, and in default that execution issue therefor, and that the undivided one-half interest remaining in the defendant in said lots be sold to satisfy said decree.

HAND, J. (after stating the facts).

It is first contended that the service upon the defendant is not sufficient, in this: That the notice of the commencement of suit served upon the defendant did not state the term of court at which he was to appear and defend. The notice which was served upon the defendant was attached to a copy of the bill, and the bill recited the suit was commenced to the November term of the superior court, and asked that the defendant be summoned to appear at that term and defend, etc. The notice and copy of the bill formed but one instrument, and the law required them to be considered together, and not separately; and if, from a consideration of both the notice and the copy of the bill, the term of court at which the defendant was required to appear and defend was clearly apparent that was sufficient. In Cloyd v. Trotter, 118 Ill. 391,9 N. E. 5078 the defendant was served by a notice of the commencement of suit and a copy of the bill, and the point was made that, as the notice was not signed, the court, by the service...