Illinois Appellate Court.

Illinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.281) online

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*fi!ri;r i-^- biuiXfi itmalnlqaoo ,«5eX tXl;r0S doteB ^x^inut^b flu ;fnfi* atns

*0a Motion of attorney for plaintiff aaking that
a reoeiyer be appointed to co&leot rents for the preaises
described in the bill of complaint in said orrxise and the
court being fvilly advised doth order and appoint Robert
E. Gothard, 9305 Ogden Are., Congress Pr-rk, 111,, who
has conaented to serve without ch rge pnd upon his giving
bend in the sua of Five Hundred dollars."

"An Act oonoerning the appointment and discharge of

receivers," Approved May 15, 1903, In force July 1, 1903, Oahill's

Illinois Hevised Statutes, 1933, Chapter 2p., Par. 55, provides:

"That before any receiver shall be appointed the party
Baking the application shall give bond to the adverse party
in such penalty as the court or judge may order and with
aeoixrity to be approved by the court or judge, conditioned
to pay all d?:ima.ges, including reasonable attorneys' fees
sustained by reason of the appointment and ^cts of such
receiver, in case the appointment of such receiver is revoked
or aset aside; provided* that bond need not be required, when
for good cause showh, and upon notice and full he ring, the
court is of opinion th^t a receiver ought to be appointed
without such bond."

From the record, it appears tit complainant filed no bond, as
required by the statute, nor was he ordered to file suoh bond* There
it no recitation in the order to the effect th?,t the bond «f complain-
ant is not required, and stating the reasons why no suoh bond is
required, as the statute provides.

In N?,tioiial Plumbing & :ieating 3upp1v Co.. v. Illinois
Wttod Preserving COf . 339 111. App, 69, this court spid:

"Although a record may show sufficient grounds for the
appointment of i receiver, if the court appoints - receiver
without requiring a bond from the moving party, under the
exception in the statute, unless it is expressly stated in
the order of appointment th-'t the receiver is to be aooointed
without suoh bond, the order is erroneous; in other words,
the order of appointment of ' receiver in suoh a case must
itself show th:it the necessity of giving a bond by the movii^
party is expressly dispensed with."

In its opinion in the last mentioned case, the court cites ouuay

Supreme and Appellate Court o^^ses to the saae affect. See also

Sherman P^rk State Bank v. Loop Office Building Corp.. 838 111. App,


:\iif"s.^ Bid aoQL


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Whil« R\ile 31 of this court provides thnt "where ftBd
Interlocutory order or decree Is entered on an ex parte appllo'itlon,
the party proposing to t^ke an appeal therefrom shall first present,
en notice, a motion to vacate the order or decree to the trial court
entering such order or decree" within the time fixed by the rule,
we are of the opinion that this rule has no application to the
Instant case* The reoord does not indicate that the he^iring on the
petition to appoint the receiver was "on an Ji oaytc^ application".
On the contrary, it is shown that defendants had filed an answer,
had notice of the appliOi^.tion, and, in so far as the reoord indicates,
were in court at the time the order appointing the receiver was
entered. f« are of the opinion that the oourt was in error in
not requiring plaintiff to give a hond, as provided by statute, or,
if a hond was not required, that the order show the reason why it
was dispensed with. Therefore, the order appointing the receiver is




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•-53UOPIOO <L <KOEJiw QUA .L.q ^jaaaH

37780 / -^-^


Plaintiff In Error,


ED SANORIS, ) ^ ^ _^0F OHIOAO^, ^

2S1 I.A/606'

Defendant in Error,

Opinion filed June 26, 1935


The defendant in this case, Ed Sanoris, was arrested on
the 5th day of January, 1934, oharged with driving a motor vehiolt
while intoxicated. He was tried on the same day by the court without
a jury and convicted and sentenced to the House of Correction for 30
days and fined ^300 and costs* January 13th, seven days later, by
counsel, he served notice of a motion under 3ection 89 of the Practice
Aot, to vacate the judgment* The motion was allowed and the judgment
vacated, a new trial had on January 16, 1934, the defendant fotmd
guilty and placed on probation for one year* The People of the 3tate
of Illinois sued out a writ of error to review the order granting
the prayer of the petition filed in accordance with Section 89 of
the Practice Aot vacating the judgment of conviction in accordance
with the prayer of the petition. The petition among other things
alleges that at the time of the trial Sanoris w^s a minor of the age
of 30 years and resided with hie parents; that he had never been
arrested before; thnt he was employed by the Union Bag and Paper
Company; that he was arrested January 5, 1934, about 13:30 A. U*
and at the time of the trial was totally unprepared and unable to
engage counsel; that the police refused his request to co.iimunicate
with his parents; that if he had been allowed time he could have
produced witnesses who would have testified that prior to his arrest
he was not intoxicated nor in the habit of drinking liquor*

ciEQL ,3S srix/T, £)9lxl noxniqO

ftm/olt *a.<Bfert0>%dl) Sirf* ^^Sti ^di x^fjwix-sl, ao bad l'?t'xt w»n s ,&8-J'.';oj8'

4#xi#8i •/!!»■ lo ©Xqo » -'»t »flO ^o^ aoliBCiczq no i)»OffXq feCB x*-tiju;

gnl^nsiS t^ttro ^di visivsi -v t© tlxn b tuo b9sjB nlontlll 1'

»Qatib'xooo& at aoiJsiv/ioo 1:o tisaiagf)^^ acC* ^uU^osv ;foA eolJOBi^ erf
B-gaidi i9Ato gflOflae nol^iifg:^ ^noitXi^q ed^i lo is^fiiq add- Ait

. OSjSX ;f.£MK;f£ ^Mt.. ' - ^un?«"t bets^rxfi brii »d tsdi^ ix^.«qiE^

Qi ®Xdanu b/ii? Jb*^«q»iqxjij vi.. iic^ s^'m Ititif 9(ii to Siai* 9(it in ba

»t«ol£w/«iftO» o* teewpdt eirf fi»8j/t&!r ©oiioq &sft ir.tit jlaa/u/oo •sjsaji

«>Trff bXifon %ti *ffii;t ftatrcXijB /B»»tf t&d <i£f ti Isri* jerf^ns-iflq etA dit

tfumia Bid oi xoltiq iffili Jb«iti*««* *TArf fiXifCw orfnr essaaasMw hsox/JboT

•towplX ^fliainiyfc to #i<Jjsrf f?d* cl ton b^:t!^otTOiiit Jton a.aiv «


Thtr« is nothing before this court fxotpt the oommon law
record and the petition, A punc pro tuno order wai entered, however,
which ia in the record, from whioh it appears that the court haring
examined the record and the memoranduffl made during the trial on
January 5, 1934, was of the opinion that the record was incorrect in
stating that the defendant was represented by counsel. The nunc pro
tunc order further found that the defendant was not in fact reprs-
ssnted by counsel at the time of the trial*

The Criminal Code of this State provides that every person
charged with crime shall be allowed counsel, and if unable to procure
one by reason of his pecuniary condition, ooxinael should be assigned
by the court. Particularly, in our opinion, would this provision
be compelling in the case of a minor*

This court in the case of City of Qhicpgo v, Geraghty. 189

111, App* 90, held that it was an abuse of discretion to refuse a

request by a defendant for a continuance in order for him to engage

ooxinsel* The averment in the petition to the effect that Sanoris was

refused an opportunity to communicate with the outside world after

having been arrested, would indicate a duress which, if known to the

court at the time of the trial, might have resulted in a judgment

different from that entered at the time* True it may be that some

of the facts relied upon in the petition could have been raised at

the trial, and probably would have been if Sanoris had been represented

by counsel and had been granted a continuance,

19e aee no error in the action of the trial coiirt/for that

reason the juidgment of the Municipal Court is affirmed*




-•iq^^ sl-oa^ ni tea ff.«w ;taiii«Ta'i*«£> «i|f^ .tJBydi fiJSi;®! T&if^Tut -i:»to:o q^x.^^
t.9 fe»fJf>T a»3tf ovsri liXxfoo noiixthq »if* nx a(K(i/ l>»iiie^ a^Jaal »4S- to



•SftAR MELSOK, M Auditor of Publlb Adepunt^
of the Stata of Illinoi«, /

Oomplainants^ /

▼• /




Intervening Petitioners,

V, ^

WILLIAM L. 0»CONNELL, t^oeiver in Substitution
of QEOHGE W* HEINECKE, Reoeiver of the
Roseland State 3?vinga Bank, a corporation,




1 I.A. 60^

Respondent, Appellant.

Opinion filed June 26, 1935


Frank C. Leviton and Lillian H. Leviton filed their in-
tervening petition in the case of People of the State of Illinois,
ex rel., Oeear Nelson, as Auditor of Public Accounts of the Strte
of Illinois V. ."toseland State Savings Bank, asking to have certain
moneys in the hands of the bank declared a preferred claim, W«
are not provided with a clear exposition of the facta in the briefs,
but from the pleadings in evidence ?s contained in the abstract,
it would seem that on Jxine 10, 1931, Lillian Leviton and Frank
Leviton had on deposit at the Roseland State Savings Sank in two
separate accounts the sum of .934,55 and $306.11. On June 10, 1331,
Frank Levitin appeared at the bank in the City of Chicago and pre-
sented two pass books issued by the b^jnk and showing the amount of
these two deposits and demanded payment. He w-^s informed by aa
officer of the bank that he could not have his money that day, but
that they would accept a 60 day demand notice. Leviton thereupon
filled out two forms of notice under protest. These notices were ia
duplicate and one copy was left at the bank and the other copy

B09 .A.I IB2

^ . ^ KOTI\

esei ,as eavl, beHI noiniqO

^Jr T/Edfl ©ft* n^ ^sa^s^noo e.R »0fl«l>j:-y*» «! e^flii>,a»Xq stfJ' aio^l Jirtf
:CaiS3i bfm aotMvvd a^-lillJ. ^XCEX t&X anuL no ^Ti^d* aetea Muotr tl

ti: i tOX eaciU nQ .j;l.;;08if Joii£ <ie**e8f to «wa ®ii^ e^ni/oooje •]^S1A«»»

tsjcf ^\£ib tMdt •^»f;c>ij< Bill av.nri ton J&Xyoo ori ^rtli'. :ifnBcJ »rf* lo. aepitlo
flcxfi/fiie'rfit no*ivo.I .*>ol*on fciifltaeJb tJRJ^ 03 -^ Jqaoos iiXjuow ^eift *£xl*


retained by Lerlton. Subsequently, on July 1, lerlton went to tbe
bank and had the Interest then due entered on the pass books. It Is
not olear froa the evidence whether or not any demand was nade after
the expir?tlon of the 60 days*

Avigust 14» 1931, the bank was found to be insolvent and
one Georgt W« Reineoke was appointed receiver • Apparently during
the oourse of the litigation Reinsoks w?s renoved and the People
of the State of Illinois, ex rel., Osoar Nelson, as Auditor of
Public Aooounts of the State of lUinoia was placed in charge of
the insolvent bank.

The intervening petition of the Levitons was referred to
the laaster in chancery before whom the main cause was being heard and
a finding entered by the master to the effect that the Levitons were
entitled to a preferred claim against the bank* This recommendation,
over objection, was concurred in by the chancellor and an order was
entered directing Williaa L* O'Oonnell, the present receiver, "to
pay to the petitioners in full of the claims and demands set forth
in said petition, the axm of 21,140*66, in due course of administ ra-
ti j-on . out of the funds in his hands as such Receiver as a preferred
claim*** The order itself is erroneous inasmuch as the receiver is
directed to pay a specific amount, whereas this amount should be
prorated with other preferred claims* Inasmuch as the entire claim
will have to be disallowed as a preferred elaim, it will be unnecessary
to discuss at length the order itself*

The same question as that involved here was before this
court in the case of i'eople of the State of Illinois, ex rel Ijelson
▼ • First Italian State Bank, on appeal of ijetteo and n^ela Pennisl..
Qlaimante. Gen. No* 36884« In that case the Pennisis had on deposit
with the First Italian State Bank, in a savings account, certain
sums of money for which they made a demand for payment* This was
refused by the bank on the ground th^t they could not withdraw their


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..!» ,^ -l . > :.1 -. .' .-, ^ r-: r r.-, r'. +

e»?w t:3&:dq ns Jb/is soilsofi.eiso iSii* ^d iii l>e'X3Uff»i50Q saw ,itoi*&et^'o riavo

Qj** ^tsvisuei ffi»?aiq ari* ,iX9itaoC'0 *i iK«i;XXi« 3rtX*09xli^>«ie*fl9

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dc' fcXiJOils .t«xfOis.s 614^ 84:^*r3£i!'' <.^m«»a« oiiXo^qa s t'S^ «* i^sid^oas^-fc

nlsii srolixi 8s« sisxi iiOYlo/iii ijifsit oft floXiaeup ©».e» SiSl
aoeXslI Xft - . X9 «aiciiXi.a,I lo o^n-t^ »A$ lo Qiqon'i lo 3a?-o o/i* «-t ifTJJOo

«iR*TOO «*fliJOrto«? st-^iatTHB c- dx ,aIfljB<i »jrf*e ««Xx«iX #eiX4 3ri,r xf^iw
e.5?n eirfj ,:^^r«•n<f«•., 'xc'r i>B«Rai^ r. Qbr^ xext* fioxjrfv «ol ^afloas lo Bttira


deposit until after the expiration of 60 days. Subsequently, and
after the expiration of the 60 days, the Pennisis again demanded
payment of their deposit and were again refused. The ItaJLian State
Bask haTing been declared insolvent^ the Pennisis, as in this oase,
intervened and asked that their olaia be declared preferred. This
oourt found that the claim was not a preferred claim, but that the
Pennisis occupied only the position of a general creditor* This

oourt in its opinion, said:

•Ws are of the opinion that neither by the presenta-
tion of a check in person by the depositor, nor by a demand
Bade through the presentation of a draft by a drawee bank
upon a depositary bank and refusal to pay, is the amount
segregated from the general fund or the deposited money
■ade a trust fund separate and apart from the general assets;
that such act of the debtor in refusing to pay woiild justify
the creditor in maintaining an action to recover the ajsount
due and to participate as a general creditor in the funds
of the bank. "

It does not appear that the funds on deposit in the name

of the Levitons was a trust fund and under the rule of stare decisis

this court is bound by its opinion in the case of People of the

State of Illinois, ex rel.. Nelson, v. First Italian State Bank, on

appeal of Matteo Pennisi and An>:.ela ^'ennisi. supra . A petition for

a writ of certiorari in the Pennisi oase was de&ied by the Supreae

Court and it therefore stands as the law of the oase in so far as

this court is concerned. The writer of the opinion in the ease at

bar dissented from the views expressed in the majority opinion in

the Pennisi, case for the ssune reasons as those presented here in the

briefs filed by the Levitons, namely, that after a demand was made

on the bank and a refusal to pay, the money was held ex malefioio. and

it thereby became by implication a trust fund. The views expressed

in the majority opinion, however, are controlling and, for the reasons

empressed in the Pennisi case and for the reasons expressed in this


Ua »flv : '

Ji fli ^ICWOO


^;'t Ic



■' ,3tfled Sri* to
effj- to •9lgea'-l TO sejv. vd i>j0;.aod el ^jcroo •iffi'

as rat <M ai sit/iO »rf^ tx> wsX *«f* Jtotetsdi tl bas ^ruoQ

tB «8jso ftxft at n.. ■jriT .t>9ni®orroo si *!tJ:;oo aixfJ

Sif-vf ftl eTSrf &9*ix3s9rrq sii«il;t »© aiTos ^^-x ajtits »rft tot Saj^o ^.af<7n9"i ^xft

an-*- tOX ptt^lnm xa f^Iftxf srw if^no/o sdff ,t^q ci* iA»i/lM /i bim :S.anci erii no

asaodaoi »rf* i- . •gntiiot^xtfsfi »tr: ^tstA^wif ^aoinico Y^ltot^oi drf* nl


opinion, the deoree of the Circuit Court is reversed and the cause

remanded with directions to deny the prayer of the interrening




, UAH m; . . » jaasH




Bailiff of the Munioipal Court of



231 I.A.606


defendants- Appellees*

Opinion filed June 26, 1935


James T. Fulker obtained a judgment in the Uunioipal Court
of Chicago against Louis 0. ^lanz in the sum of :l,503.88 and ooats*
Glans was the hioshand of Jennie aianz, the plaintiff in this suit.
An execution issued out of the offioe of the Clerk of the Municipal
Court and returned no part satisfied* An alias execution issued and
was placed in the hands of the bailiff of the Munioipal Court irith
directions to levy upon the goods and chattels in the apartment of
Louis 0* U'lanz, the husband of the plaintiff here* Levy was oade and
ttie goods and chattels in question seized. Plaintiff brings this
astlon alleging that the goods and chattels levied upon belong to
her and not to her husband, Louis 0. Gianz, the judgment debtor.

The goods seized consisted of, to-wit: 1 overstuffed chair;
1 pedestal and marble bust; 1 piano; 1 lamp and 1 table; 3 five-pieoe
bedroom sets; 1 twelve piece dining room set; 1 hall clock; 1 six-
piece coffee and tea set; 1 floor lamp; 1 statuette; and 1 console
table, valued at ;i;350.00*

Th« plaintiff testified that the 2 btd^ooa sets and the
dining room set levied upon had been bought about 11 years previous
to the. time of the execution and that the purchase was made from a
sum of il, 000,00 which had been given to her by her father. In
this she is corroborated by her sisters. Soma A. i^rench and Josephine
0. Berg* Plaintiff further testified that the overstuffed chair was

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.s^co© fefl,^ 88-aOd*XiS 1:0 Uttra »d^ ai 3S««I*^ .0 Blued Janla^Js oaf'OlriO lo

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lo *naffiti«qe ad* ixx sXe.t*i-?rio Jbae ftftoog 9dt noqu x^&l o* anol;ro9iXl>

aifli 83nX:f(i J'Xlintsiri .tesiae :<iioii-89i«> ai 8X©:r*?5fio bap. sfeoog »ti*

oJ- B«oJ^®«^ °o^w Jb©XvsX aXadleiC© Site sibQoa 9At t^^^At s^iaeXXa floito^

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-xie X ;iooXo XXi5ft X r-^'" ■'•"■''J' "•Jnis-iii" soaic; svXew* X ;«*©8 moorb^d
zLoBnoo r -•; • •?,iisn:t ^t^.« .^-* fJrr.'S aartoo ooelq

»00,'': b»ul&-7 ^eXdi^*

•4* bae RJ99 «oo«&«tf ' »ri* **«i* b9nit&?>t IttiataSxi edT

?5 ao-rl sJasfli 3i*w »ei$ift>TJcni ad* *.itf;r *«« noX^/^ooro erf* »• eoi* arf* o*

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purohased at the aaai* tloie and in the same manner, and that the piano
and the eix-pieoe ooffee and tea set were given to her as a gift.
The gift of the piano had been made 30 years prerious. The table
described in the levy, according to plaintiff's testimony, had
belonged to her father and she bad taken it from his home and the
lamp had been given to her as a birthday present Jiany years ago«
The hall clock had been given to her by her husband as a birthday
present 15 years previous to the execution and the six piece ooffee
and tea set was a present given to her by her husband over 8 years
before the entry of the judgment. The floor lajnp was given to her by
her sister and plaintiff states she bought the statuette in Italy.
The pedestal and marble bust had been bought for her by her husband
30 years before. The little statuette was bought by her out of her
own money. The ooffee tabl* had been a gift which she possessed over
30 years.

There was no further testimony other than th^it of the
plaintiff and her sisters*

The judgment in this case ran against the husband alone.

Defendant relies upon the statute. Chapter 68, Section 9,
8«lth-Hurd«s Illinois Revised Statutes, 1931, providing that transfer
of property between husband and wife living to ether must be in
writing, acknowledged and recorded in the same manner as a chattel
mortgage, or third persons will not be bound.

According to the testimony of plaintiff the bedroom sets
and dining room set were purchased with money given her by her father,
so that the statute had no appliOcition. Gifts from husband to wife
convey title to the wife and become her own separate property. There
is no reason In law why a husband cannot make gifts to his wife which
are v^lid, regardless of the statute, unless the gtift ie made to
defraud creditors. This statute refers particularly to the transfer


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of an Interest in iDUBiness, real eetnte, bonds and suob evidenoot
of indebtedness, as would indicate an intent to defraud creditors*
In this connection, the time when the transfer is nwde, the solvency
or insolvency of the traaaferor and the amount involTSd, enter into
the consideration. Bishop v. Rowe. 211 111, App, 514; gden v.
Bohling. 69 111. App, 307. No such situation is found from an exam-
ination of the reoord in this oase. The flfta of the chattels and
personal property to the wife by the husband were of such character
and made so long before the entry of the judgment as to preclude any
possibility of fraudulent intent.

There is no evidenoe as to when the husband became indebted
to the defendant, but certainly it ooiiild hardly have been prior to
the making of the gifts in question. Husband and wife, can make
gifts one to the other without requiring evidence of transfer in

Online LibraryIllinois Appellate CourtIllinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.281) → online text (page 13 of 39)