Clark v. Burke

Mr. Justice Waterman Delivered the opinion of the Court. The order of March 9, 1895, finding, as it did, that the assignee had received certain funds and property, and ordering him to pay definite amounts to certain persons, was an appealable order, while a mere order of distribution of funds in his hands would not have been. Chi. Title & Trust Co. v. Caldwell, 53 Ill. App. 219; Stanton v. Andrews, 18 Ill. App. 552. Ño appeal having been prosecuted from such order, it is insisted that upon the present appeal the court will review the entire proceeding and determine whether that order ou^ht to have been made. ' The court, upon an appeal from an order of contempt, civil in its nature, Avill determine not only whether the court had authority to make such order, but also the authority to make the order for disobedience of Avhich the order of commitment or other punishment is made; and the court will also examine as to alleged errors that may have intervened in the execution of the original order, and in the supplementary proceedings which have resulted in the conviction of the respondent. Blake v. The People, 80 Ill. 13; Lester v. The People, 150 Ill. 408;. Berkson v. The People, 154 Ill. 81. The court has authority to order an assignee to pay only such funds as he has. The validity of an order to pay, depends upon its being one with which the assignee is, or is bound to be able to comply. The court, in the order of March 9th, did not find that at that time the assignee had anything in his hands, although it found him to have been guilty of conduct on account of which it might, perhaps, have ascertained and charged him with the value of property that he had, or should have received; and upon such finding might have ordered that he pay the sum so found. The court found in the order of March 9th, that the assignee had received in money the sum of $759.17, and had received in accounts and other property enough to make the total §1,433.71; thereupon the court ordered him to pay to various parties sums amounting in the aggregate to $1,427.03; in other words, upon a finding that he had once received in cash $759.17, and in other property $674.59, it ordered him to pay out in cash the sum of $1,427.03. This, it is contended, the court had no authority to do. The numerous findings of the order of March 9th result in an order to pay a sum which it is not found that the assignee has or has ever in any way, received, nor does it appear that the assignee has been in any manner charged with such sum. The answer of the assignee to the rule to show cause, sets forth the payment by him, under direct orders of court, of the sum of $423.89, and payment for other expenses of administration, the items of which are given, of the sum of $1,071-91, making a total of $1,495.87. A majority of the court are of the opinion, in respect to the order of .March 9 th, that the County Court then had authority to order the assignee to pay the sum of $1,427.03, because it had, in that proceeding, jurisdiction over the subject-matter, and the person of the assignee, and that the things here complained of are mere errors which, upon this appeal, can not be considered; the order of commitment of appellant to jail being collateral to the order for non-compliance with which such order of commitment was made. The order of the County Court is therefore affirmed.