Woods v. First Nat. Bank of Chicago

• Decision Date: 20 April 1942
• Docket Number: Gen. No. 41991.
• Citation: 314 Ill.App. 340,41 N.E.2d 235
• Parties: WOODS v. FIRST NAT. BANK OF CHICAGO.
• Court: United States Appellate Court of Illinois

314 Ill.App. 340

41 N.E.2d 235

WOODS

v.FIRST NAT. BANK OF CHICAGO.

Gen. No. 41991.

Appellate Court of Illinois, First District, First Division.

April 20, 1942.

Appeal from Superior Court, Cook County; Francis B. Allegretti, Judge.

Action by Weightstill Woods against the First National Bank of Chicago, not individually, but as executor of the will of Clara H. Tollerton, deceased, for money allegedly due plaintiff from deceased. From a judgment striking his complaint and dismissing the suit, plaintiff appeals.

Affirmed.

James G. McConaughy, of Chicago, for appellant.

Nat M. Kahn, of Chicago, for appellee.

MATCHETT, Justice.

Woods sued Clara H. Tollerton and filed a verified complaint with exhibits attached. He claimed $1,153.80 with interest for delay, as provided by the statute. Defendant was served with summons October 4, 1940. November 4, 1940, a stipulation was filed, signed by plaintiff and defendant's attorney, that the time of defendant to file her sworn answer should be extended to November 14, 1940, and that a copy be served on plaintiff. An order as stipulated was entered November 4. November 14 (apparently without notice) plaintiff filed a motion for default for want of an answer and judgment. The same day defendant moved for leave to file her motion to strike plaintiff's complaint and accounting papers filed with it for insufficiency, and to dismiss plaintiff's suit. Specific reasons for striking the complaint and dismissing the suit were attached to the motion, and in support there was filed an affidavit by defendant's attorney who said the process was returnable Monday, November 4, 1940, at which time the answer or other pleadings was due; that for weeks prior to November 4, 1940, and continuously after, he had been engaged in extended arguments on objections to the report of a special master and also had been engaged in various appeal matters; that when the stipulation of November 4 was entered into, affiant had not examined plaintiff's complaint; that since that time he has done so and was of the opinion that the complaint did not state a cause of action and was insufficient in many respects; that he requested plaintiff's consent to the filing of the motion November 14, 1940, but plaintiff refused. The affiant therefore requested an order granting leave to file instanter her motion.

January 25, 1941, defendant died. February 3, 1941, her executor was substituted. On February 27, 1941, the motion of defendant to strike the complaint and dismiss the suit was granted. Plaintiff elected to stand by his complaint, his suit was dismissed and he appeals.

It is earnestly urged that because of the order entered by stipulation the granting of the motion for leave to strike was in violation of Article 1, Section 10 of the Constitution of the United States. Plaintiff also says: “By such stipulation and order, defendant surrendered all right to plead generally, and abandoned and waived all question as to the sufficiency of the complaint. As matter of law any agreed order as to pleading or fact is irrevocable without consent of all parties to the agreement.” Numerous authorities are cited in support of this novel proposition. It is said the rule was recently applied by this court in Riggs v. Barrett, 308 Ill.App. 549, 32 N.E.2d 382, and Id., 308 Ill.App. 671, 32 N.E.2d 392. In the case cited the court had before it a final consent decree. The order here is one that simply involves procedure looking toward the disposition of the case on the merits. The enforcement of such a stipulation is always within the discretion of the court, and the word “answer” is broad enough to cover a demurrer or a motion to strike. Universal Rim Co. v. General Motors Corp., D.C., 20 F.2d 966, Id.,6 Cir., 31 F.2d 969;Steele v. Moss, 69 Wis. 496, 34 N.W. 237, 2 Am.St.Rep. 756. Moreover, the affidavit of defendant's attorney not denied (which plaintiff did not see fit to abstract), discloses a situation where the matter of the enforcement of the order was wholly within the discretion of the court. In 60 Corpus Juris 94, notes 34, 35 and 36 is said: “Stipulations are under the control and subject to the direction of the court, which has power to relieve the parties therefrom upon proper application at a showing of sufficient cause, on such terms as will meet the justice of the particular case.”

To the same effect are 25 R.C.L. 1099, note 8; Burns Lumber Co. v. W. J. Reynolds Co., 148 Ill.App. 356;Humphries v. Shapiro, 187 App.Div. 96, 175 N.Y.S. 426, citing the earlier case of Van Nuys v. Fitsworth, 57 Hun 5, 10 N.Y.S. 507. Moreover, even if defendant had filed her answer to plaintiff's complaint it was within the discretion of the court to permit her to withdraw the answer and then file a motion to strike plaintiff's complaint. People v. McDonald, 208 Ill. 638, 640, 70 N.E. 646;Hackman v. City of Staunton, 190 Ill.App. 545; and Waxenberg v. J. J. Newberry Co., 302 Ill.App. 128, 142, 23 N.E.2d 574. We regard the law as well settled against plaintiff's contention.

The real question on this appeal is whether it was error to strike plaintiff's complaint. In considering that question the complaint is construed most strongly against the plaintiff. Klein v. Chicago Title & Trust Co., 295 Ill.App. 208, 14 N.E.2d 852;Lewis v. Continental Assurance Co., 289 Ill.App. 114, 119, 6 N.E.2d 882. Exhibits which are inconsistent with the allegations of the complaint negative and control the allegations. Awotin v. Abrams, 309 Ill.App. 421, 33 N.E.2d 179;Bunker Hill Country Club v. McElhatton, 282 Ill.App. 221;Lyons v. 333 North Michigan Ave. Bldg. Corp., 277 Ill.App. 93. Of course, plaintiff cannot avoid the effect of his election to stand by the complaint as it is and decline to amend it. It is true, however, that well pleaded allegations are admitted by the motion to strike. Leviton v. Board of Education, 374 Ill. 594, 30 N.E.2d 497.

Section 42 of the Civil Practice Act (Chap. 110, par. 166, Ill.Rev.Stats. 1941) provides: “* * * if any pleading is insufficient in substance or form the court may order a fuller or more particular statement; and if the pleadings do not sufficiently define the issues the court may order other pleadings prepared.”

Section 45 of the same Act (Chap. 110, par. 169, Ill.Rev.Stats. 1941) abolishes demurrers and requires objections to pleadings to be raised by motion.

Defendant claims the pleadings and exhibits attached thereto are subject to the objection that they are neither clear, explicit or definite. The items of account making up the sum claimed appear on page 4 of the Abstract. One of these is a balance on account stated December, 1934, for $203.80. The account is attached and shows extended dealings from 1932 up to 1934 between plaintiff and the Clara H. Tollerton Trust. Just who was the trustee from whom the account became due, the pleadings do not state. It might be true that while...