Stearnes v. Joy

Waterman, J. It is insisted that the court had no jurisdiction because a copy of the order was not shown to Stearnes. Appellant made no such objection in his answer, and thereby waived this irregularity. Newell v. Cutler, 19 Hun, 74-76; Wightman v. Wightman, 45 Ill. 167-175; Park v. Park, 80 N. Y. 156-161. He did not, in his answer, merely make an excuse for not paying to the .receiver when demand was made and then offer to pay, hut refused to pay at all. If, when informed of the order, the money was under his control, then his entire conduct has since been contumacious and in defiance of the authority of the court. The order was sufficiently full and explicit; he did not put his defense upon any misapprehension of its terms. ¡Nor is it the case, as is argued, that appellant, by directing that this money be charged to him, thereby took it out of the category of firm assets and made it private property. The interest of his partner and of creditors in the firm assets can not be diverted by so simple a proceeding, more especially when had, as in this case, after a bill for dissolution has been filed. The master reported that all of the witnesses whose depositions were attached to his report, were first duly sworn to testify the truth in relation to the matters in controversy. This statement, when read in connection with the order of reference, seems to answer the objection of the respondent that the oath administered to the witnesses was in the chancery cause. The court has found that appellant had in his possession when the demand was made of him, the sum of §2,399.52, belonging to the copartnership, and we think the evidence justified such conclusion. The receiver testifies that at the time of the demand, aj)pellant said he had collected the §2,350 and had the money, but that he would not turn it over; appellant denies this, but his testimony as to the way he had disposed of the money is of such a nature as to excite suspicion as to its truthfulness, and to leave the impression that appellant, when aware of the order of the court, deliberately went to work to render such order unavailing. The case of The People v. Kearney, 21 How. Pr. 74-78, is in point as to such conduct. It is insisted that the proceedings were improperly entitled. There is not entire agreement among the authorities in respect to the way in which proceedings of this kind should be entitled. In this State the proceeding is looked upon as a civil execution for the benefit of the injured party. Buck v. Buck, 60 Ill. 105, 106. In Winslow v. Nayson, 113 Mass. 411-420, the court say: “ The contempt proceeding is really but an incident to the principal cause, and all the papers relating to it should be filed with the other papers in the case. In Sercomb v. Catlin, 128 Ill. 556, a proceeding entitled in the name of the receiver, under which the defendant was adjudged guilty, was affirmed. This objection seems rather immaterial here, as appellant was held upon proceedings had before the court; and by its order an additional title was there given to the action. It appears from the record that the receiver had qualified before he made the demand; that it was in the power of the respondent to have obeyed the order of the court, and that he ought to have done so. The order of the Circuit Court is affirmed. Order affirmed.