Spraker v. Ennis

Mr. Presiding Justice Harker delivered the opinion of the court. The record in this case comes to us in a very confused and disjointed condition; In seeking a reversal of the decree a multitude of alleged errors are urged upon our consideration. The numerous points raised by the demurrer to the bill will not be noticed in this opinion, although they have been argued in extenso, for the reason that plaintiff in error did not stand by his demurrer, but answered and had a trial upon the merits. The claim of misjoinder will not be noticed for the reason that it can not avail at this stage of the proceedings. A leading contention made by the plaintiff in error is that the Circuit Court did not have jurisdiction of the Farmers’ Mercantile Association. There can be no question that the return of the officer as made upon the only summons that appears in thé transcript is defective. But the decrees of October,-1890, and April, 1896, recite that the court had jurisdiction of the defendants, and as the court continued the case from term to term and the certificate of the circuit clerk shows that files which should appear in the record are missing, we think the presumption should obtain that the court acted upon other process and service than that which appears in the transcript. Turner v. Jenkins, 79 Ill. 228; Hemmer v. Wolfer, 124 Ill. 435. We do not regard the matter as very- important, either, for the reason that thé concern was defunct and every officer upon whom service could have been had as service upon the association as a going concern was individually before the court as complainant or defendant. Much is said about the injustice.to the plaintiff in error of the decree of October, 1890, and. the improper findings, therein contained, and the decree, of April, 1896, wherein he was compelled to contribute $621.76 toward the payment of unsatisfied claims held by former directors. He was compelled to contribute that sum because of his wrongful and fraudulent acts as director. It is claimed .that the1 decree in that respect is wrong because there was no finding as to the length of time served by the different officer^ and no finding as to the individual acts of the officers in.' creating the indebtedness. It would seein that such finding in the decree would be necessary unless there was evidence: preserved in the record upon which to base the order of contribution. The great obstacle in the way. of plaintiff in1 error on that contention, however, lies in the fact that there was evidence reported by the master and preserved in the record which was subsequently lost or abstracted from the files of the case as appears from the certificate of' the cleric of the Circuit Court. It must' be presumed that there was sufficient in the missing evidence to suppqrt the' order of contribution. "When it appears from the certificate of the officer making up a transcript which comes to us" that there was evidence taken' and preserved which subsequently became lost from the files, we should not feel, justified in reversing a decree because of insufficient evidence to support it. To place plaintiff in error in a-position to urge that contention he should have taken steps in the lower court to restore the missing evidence before bringing the record here for review. It is apparent that the affairs of this association were conducted in a most fraudulent and high-handed manner. The plaintiff in error is not in a position to justify the very bitter complaint made by him that he is compelled to eon-" tribute to the payment of. indebtedness made long after he ceased to be a director. His acts while director were just as fraudulent as the acts of the officers who followed him and-of the same kind. He and his associates seem to have set the pace by which their successors traveled. In view of the transcript of the record as presented to us and the certificate of the officer below who made it up we feel constrained to affirm the decree.