Wilson v. Prochnow

• Decision Date: 13 December 1933
• Docket Number: No. 21964.,21964.
• Citation: 354 Ill. 98,187 N.E. 914
• Parties: WILSON v. PROCHNOW.
• Court: Illinois Supreme Court

354 Ill. 98

187 N.E. 914

WILSON

v.PROCHNOW.

No. 21964.

Supreme Court of Illinois.

Oct. 21, 1933.

Rehearing Denied Dec. 13, 1933.

Error to Circuit Court, Cook County; Thomas Taylor, Judge.

Proceeding by Marion G. Wilson, as executrix of the will of William Garnett, deceased, against Raymond E. Prochnow. An order was made that defendant deliver to the executrix certain property, and subsequently defendant filed a petition in the nature of a writ of error coram nobis asking that the orders be set aside and vacated. The prayer of the petition was denied, and defendant brings error.

Cause transferred.Wm. Scott Stewart, of Chicago, for plaintiff in error.

Thomas G. Vent, of Chicago, for defendant in error.

JONES, Justice.

Defendant in error, Marion G. Wilson, as executrix of the will of William Garnett, deceased, presented to the probate court of Cook county a statement under oath that plaintiff in error, Raymond E. Prochnow, at the death of the decedent, had in his possession bonds belonging to the estate of the decedent, that he had converted to his own use and embezzled other bonds in his possession which were the property of decedent in his lifetime, and that he had refused to deliver to defendant in error the bonds in his posession and the proceeds and value of the bonds converted. A hearing in the probate court resulted in an order that plaintiff in error deliver to the executrix certain bonds and a sum of money equal to the value of other bonds which the court found he had converted to his own use. An appeal was taken to the circuit court of Cook county, where, after a hearing de novo, at which both parties were present in person and by counsel, an order and judgment similar to those in the probate court were entered on May 24, 1932, nunc pro tunc as of May 23, 1932. As to $10,000 of bonds, the value of which the probate court had ordered plaintiff in error to pay to the executrix, the circuit court refused to grant the relief sought by the executrix, because it found that as to the proceeds derived from those bonds the relationship between plaintiff in error and the decedent was debtor and creditor. On June 18, 1932, the circuit court ordered plaintiff in error be committed to jail for failure to comply with the order of May 23, 1932. On March 30, 1933, plaintiff in error filed a verified petition in the nature of writ of error coram nobis, asking that the orders of the circuit court in said proceeding be set aside and vacated. An affidavit in opposition to the petition was filed by the executrix, and the court denied the prayer of the petition. Plaintiff in error has sued out of this court a writ of error for a review of the record, and defendant in error has assigned cross-errors on the record.

It is suggested that this court has jurisdiction because constitutional questions are involved. Various assignments of error attempting to raise constitutional questions are made by plaintiff in error, on only one of which are any cases cited or argument made in his brief. The one constitutional question argued in the brief is that sections 81 and 82 of the Administration Act (Smith-Hurd Rev. St. 1933, §§ 82, 83), under the provisions of which these proceedings were instituted, are unconstitutional, in that they attempt to provide a remedy for an executor or administrator for the recovery of property belonging to an estate in the possession of another, in a manner not generally or uniformly applicable to other persons in the same class and to enforce the judgment in a manner not applicable to cases where other persons of the same class are involved.

Assignments of error not argued in the brief of the party making such assignments are waived and will not be considered. People v. Cobb, 343 Ill. 78, 174 N. E. 885;People v. Brown, 325 Ill. 307, 156 N. E. 369;Goff v. Gerhart, 316 Ill. 513, 147 N. E. 419. This rule applies to assignments of error raising constitutional questions as well as others. McMurray v. Peabody Coal Co., 281 Ill. 218, 118 N. E. 29. To warrant a direct appeal to the Supreme Court, the validity, and not merely the construction, of a statute, must be involved. Shereidan-Brompton & Annex Bldg. Corporation v. Daane, 348...