Wilson v. Prochnow

• Citation: 1 N.E.2d 505,284 Ill.App. 369
• Decision Date: 07 April 1936
• Docket Number: No. 38249.,38249.
• Parties: WILSON v. PROCHNOW.
• Court: United States Appellate Court of Illinois

284 Ill.App. 369

1 N.E.2d 505

WILSON

v.PROCHNOW.

No. 38249.

Appellate Court of Illinois, First District, Third Division.

March 26, 1936.

Rehearing Denied April 7, 1936.

Appeal from Circuit Court, Cook County; J. T. Cummings, Judge.

Proceeding in the matter of the estate of William Garnett, deceased, by Marion G. Wilson, executrix, against Raymond E. Prochnow, wherein respondent was committed to county jail until he should comply with a decree. From an order sustaining a demurrer to respondent's petition to be released from imprisonment and an order dismissing the petition, respondent appeals.

Reversed and remanded, with direction. Altheimer, Mayer, Woods & Smith and Wm. F. Struckmann, all of Chicago, for appellant.

Thomas G. Vent, of Chicago, for appellee.

HALL, Presiding Justice.

This is an appeal by Raymond E. Prochnow from an order of the circuit court of Cook county, sustaining the demurrer of Marion G. Wilson, executrix of the estate of William Garnett, deceased, to Prochnow's petition to be released from imprisonment in the county jail, and from an order dismissing his petition and awarding costs.

On May 24, 1932, a decree nunc pro tunc as of May 23, 1932, was entered in the circuit court of Cook county after a trial de novo in that court, on an appeal from the probate court, in the matter of the estate of William Garnett, deceased, of which estate Marion G. Wilson is now, and was at the time of the entry of said decree, executrix. In this decree it is recited inter alia that the court had examined Raymond E. Prochnow, the petitioner here, in open court under oath, and had heard and examined exidence, oral and documentary, offered and received in said circuit court in the matter of a petition and citation issued against Prochnow. The court found, among other things, that in the year 1922 Prochnow became a member of an incorporated firm, known as “Borregaard, Prochnow & Co.,” and that thereafter he acquired the interest of certain other persons in such corporation, and in January, 1926, changed the corporate name to “Raymond E. Prochnow & Co., Inc.”; that Prochnow owned all the common stock, except a few shares owned by his brother and his wife, and that he owned all the preferred stock, except 57 shares thereof which he sold to William Garnett, now deceased; that Prochnow, either personally, or as a member of this firm, was a dealer in bonds; and that Garnett transacted business with Prochnow from the year 1921 until July 13, 1930, the date of Garnett's death, at which time Garnett was upwards of 73 years of age. In this decree, after reviewing in detail the transactions between Prochnow and Garnett, and the certain lists of properties belonging to Garnett, which the court found Prochnow had appropriated to his own use, the court ordered that Marion G. Wilson, as such executrix, recover from Prochnow the sum of $30,280.61, together with certain bonds and stocks and other evidences of indebtedness, the property of Garnett, deceased, held by Prochnow, within 20 days from and after the date of the decree, and that in default thereof, Prochnow be committed to the county jail of Cook county and state of Illinois, until he should comply with the order and decree of the court. The order further contains the following provision: “And jurisdiction of this cause and proceeding hereby is expressly reserved so that this order and decree may be made effective.”

On June 18, 1932, a supplemental decree in the cause was entered, wherein the court found that the assets belonging to the said estate had been concealed, converted, or embezzled by Prochnow; that more than 20 days had elapsed since the entry of the final decree; that Prochnow had failed to make payments and deliver the securities prior to the date of the decree, as originallyentered, and had failed to comply with the provisions of the decree either in whole or in part; that he had not presented or filed an appeal bond for the approval of the court wherewith to effect an appeal; and that the decree and order had become final. In this supplemental decree it was ordered “that a body attachment or capias be forthwith issued herein to attach the body of said respondent, Raymond E. Prochnow; and that a mittimus forthwith issue for said Raymond E. Prochnow, and that he be committed to and confined in the County Jail in and for said County of Cook and State of Illinois until he shall comply with said final order and decree of this court, as by said statute [Smith-Hurd Ann.St. c. 3, §§ 82, 83], Illinois Revised Statutes, chapter 3, [pars. 82, 83] Sections 81 and 82 [of Act] made and provided; and jurisdiction of the cause and proceeding hereby is expressly reserved so that said final order and decree and this supplemental decree may be made effective.” After the entry of this decree, and on March 30, 1933, Prochnow filed a verified petition in the circuit court of Cook county in the nature of a writ of error coram nobis of various matters which had been adjudicated by the court in the decree entered May 24, 1932, and asked that the orders of the circuit court hereinbefore referred to be set aside and vacated. Opposition thereto was presented by the executrix, and the prayer of the petition was denied. Thereafter Prochnow sued out from the Supreme Court a writ of error to review the alleged error of the circuit court, and that court, finding no question involved which would give it jurisdiction on direct review, transferred the cause to the Appellate Court of the First District. After a hearing in the Appellate Court, this court affirmed the circuit court (Wilson v. Prochnow, 275 Ill.App. 629, Abstract opinion), and in order that a complete understanding may be had of the issues involved here, the opinion of this court in that proceeding is set forth in full, as follows:

“This cause was before the Supreme Court of Illinois upon a writ of error, which court transferred the cause to this court for the reason that in order to warrant a direct appeal to the Supreme Court, the validity, and not merely the construction, of a statute must be involved. Wilson v. Prochnow, 354 Ill. 98, 187 N.E. 914.

“The defendant Raymond E. Prochnow was committed to the County Jail of Cook County by virtue of certain orders entered by the Circuit Court of Cook County in a proceeding there tried upon appeal from an order entered in the Probate Court of Cook County, which proceeding was originally instituted under sections 81 and 82 of chapter 3 of an act entitled, ‘Administration of Estates.’ (Smith-Hurd Ann.St. c. 3, § 82, Cahill's Ill.Rev.Stat. 1933, § 81 is in part as follows:

“ ‘If any executor or administrator, or other person interested in any estate, shall state * * * that he believes that any person has in his possession or control, or has concealed, converted, or embezzled, any goods, chattels, moneys, or effects, books of accounts, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person, or the executor or administrator, or the estate of any deceased person * * * the court shall require such person to appear before it by citation and may examine him on oath * * * and make such order in the premises as the case may require.’ Section 82 (Smith-Hurd Ann.St. c. 3, § 83) provides for the commitment of a person and the enforcement of judgment recovered against a person under the act for failure to pay, and is substantially as follows:

“ ‘If such person * * * refuses to deliver up such property or effects, or in case the same has been converted, the proceeds or value thereof, upon a requisition being made for that purpose by an order of the said court, such court may commit such person to jail until he shall comply with the order of the court therein.’

“The executrix of the Estate of William Garnett, deceased, filed a statement under oath, as provided by section 81, and thereupon a citation was issued, and the defendant Raymond E. Prochnow responded and was examined in the Probate Court, and again in the Circuit Court of Cook County. Certain findings of fact appear in the order entered by the court in the cause.

“On March 30, 1933, Prochnow, upon motion, obtained leave to file his verified petition in the nature of a writ of error coram nobis, setting up the condition of the record in the instant case, and requesting that the commitment order entered without jurisdiction confining the defendant in the County Jail be vacated, and that the prayer of the petition be granted. To this petition, the attorney for the estate presented to the court his counter affidavit, and upon the face of the pleading, the motion of the defendant was denied.

“From the petition it appears that the petitioner had been confined in the County Jail for more than six months, pursuant to the order of the Circuit Court entered in a supplemental decree. It also appears from the petition that Raymond E. Prochnow appeared in court, and as a witness was questioned regarding certain exhibits; that the petitioner was not present when the decree was entered by the court on May 24, 1932, and had no knowledge that the decree had been entered until after the time had expired in which to file a certificate of evidence; that his attorney endeavored to obtain a transcript of the evidence, but was refused the same by the court reporter who appeared in court and reported the proceedings by her shorthand notes; that he was also refused a transcript by the attorney of the estate, who informed petitioner's attorney that the shorthand notes were destroyed by his order, and that the attorney for the estate did not have a copy thereof in his possession.

“It is also stated in the petition that Raymond E. Prochnow was in the County Jail and received no notice of the move to obtain a supplemental decree; that if given an opportunity to be heard, he would have presented a meritorious defense. It is also stated in the petition that at the time of the filing of said petition and at the...