McDonald v. Asay

Mr. Justice Scholfield delivered the opinion of the Court: Decree was rendered in the circuit court of Cook county, on the 21st of December, 1886, in favor of Paris, Allen & Co. against Edward G. Asay, as assignee of Gage & Bice, for $2850. Asay appealed from that decree to the Appellate Court for the First District, and M. C. McDonald became his surety upon his appeal bond. The decree of the circuit court was affirmed by the Appellate Court, and thereafter McDonald paid the amount of the decree to Paris, Allen & Co. After making such payment, McDonald caused an execution to be issued on the decree, and levied it upon lands situated in Ogle county, the title of record whereof was in' Emma O. Asay and Margaret I. Asay, and he afterwards obtained leave to file what he termed a supplemental bill, in the circuit court of Cook county, wherein he alleges that since the rendition of the decree in favor of Paris, Allen & Co., on the 21st of December, 1886, against Edward Gr. Asay, and after he (McDonald) had paid the amount thereof to the complainants in that suit, he had learned that Edward Gr. Asay, on or about the '16th of May, 1885, purchased the lands in Ogle county upon, which the execution was levied, but caused the same to be deeded to Emma 0. Asay and Margaret I. Asay, instead of to-■himself, for the fraudulent purpose of hindering his creditors, and preventing Paris, Allen & Co. from obtaining satisfaction of any decree which might be rendered in their favor against him. McDonald further alleges in his bill, that the title to the lands levied upon still stands in the names of Emma 0.. and Margaret I. Asay, and that Edward Asay resides thereon and assumes the management and control thereof; that a. large portion of the money held by said Asay, as assignee of Gage & Eiee, and due to the complainants in the original bill, as found by decree therein, was used by Edward G. Asay in the purchase of said premises; and the levy of execution on said premises and filing certificate of same in Ogle county, and that Edward G. Asay has no personal property subject to levy and sale. Edward G. Asay, Emma 0. Asay and Margaret I. Asay are made parties defendant. The prayer is, that Edward G. Asay may set forth and state the circumstances attending the conveyance of said premises to said Emma 0. Asay and Margaret I. Asay, how the payments were made and from whence the money was derived, and that he, McDonald, may have the same relief that original complainants could .have. To this bill the defendants interposed the plea that they were all, at the time of filing the supplemental bill, residents of Ogle county, and that the bill does not affect the title to real estate in Cook county, where the bill was filed. McDonald refused to reply to the plea, and, upon hearing, the court dismissed the bill. The decree of the circuit court was affirmed on appeal to the Appellate Court for the First District. The contention of appellant is, that this being a purely supplemental bill, it is sufficient that the Cook county circuit court had jurisdiction of the original bill. But the courts below held, (and in that ruling we concur,) that this is not a purely supplemental bill, but that it is an original bill in the nature of a supplemental bill. A supplemental bill is said to be properly applicable only to cases where the same parties in the same interests remain before the court. (Story’s Eq. PI. sec. 345.) But where relief of a different kind, or upon a different principle, is required from that in the original decree, an original bill in the nature of a supplemental bill may be filed. Story’s Eq. PL sec. 351 b. No relief was sought in the original bill against Emma 0. Asay and Margaret I. Asay, and they were not parties to that bill, and it is palpable that whether those individuals are entitled to hold the lands in controversy as against the creditors of Edward G-. Asay, must depend upon entirely different evidence, and the application of different legal principles, from what is required under the original bill. Under the facts presented by the plea, only an original bill in the nature of a supplemental bill could be filed, and that should have been in Ogle county, where the lands sought to be affected lie and all the defendants reside. The judgment is affirmed. Judgment affirmed.