French v. Commercial National Bank & McKey

Mr. Justice Adams delivered the opinion of the court. Counsel for appellant seek a reversal of the decree on several grounds. First, that the court had no jurisdiction, because it does not appear from the evidence that the complainant had exhausted its remedy at law. This proposition is based mainly on the ground that the execution issued on the complainant’s judgment February 9, 1897, and delivered to the sheriff February 9, 1897, seems to have been returned February 18th, by direction of the plaintiff’s attorney. The same point was made by appellant in the same cause, between the same parties, in French v. Commercial National Bank et al., 79 Ill. App. 110, and was decided adversely to appellant, for reasons stated in the opinion, and we feel bound by that decision. The evidence of De Lue, the deputy sheriff who returned the writ, is, that two or three days before the writ was delivered to him, he had sold all the property of George A. Leslie which he could find, and that he tried to find Leslie to make a demand on him on complainant’s execution, and could not find him; that he had removed from his former place of business. Two executions and the returns thereto were put in evidence, one issued January 29, 1.897, on Lizzie M. Leslie’s judgment against George A. Leslie for $3,748 and costs, and the other on Miller’s judgment against George A. Leslie for §7,104 and costs. The returns show that the former execution was levied January 29 th and the latter January 30, 1897; that February 9, 1897, there were sales under both executions, and that after satisfaction of Lizzie M. Leslie’s judgment and costs there remained only $1,185.94 to apply on the Miller judgment, which was returned satisfied for that amount. The evidence shows conclusively, as we think, that George A. Leslie had no property except that levied on and his bills receivable and accounts, which the evidence shows were assigned to appellant in trust. Mr. Barbour testified that De Lue, in his presence, and before the return was made, stated to Mr. Peters, the chief clerk in the sheriff’s office, that he had sold all the property of George A. Leslie which he could find, and that he couldn’t find Leslie, and that Peters said the writ might be returned in accordance with said facts. In no case cited by counsel, in support of the view that the legal remedy was not exhausted, were the facts the same or similar to those in the present case. Counsel also contend that complainant had a legal rem- • edv by garnishment, but w'e find no sufficient evidence to sustain this position. Appellant’s counsel object that the supplemental bill was improperly filed, was demurrable, and that no relief could be granted under it. The precise objection, if we understand the argument of counsel, is that the original bill was defective, and therefore could not be aided by supplemental bill, and that by the supplemental bill the complainant claims by a new title, namely, under the composition agreement. We find no defect in either the original or amended and supplemental bill, nor any inconsistency, in so far as complainant’s claim is concerned, between the former and the latter. By the original bill the complainant, on the ground of fraud therein alleged, sought to subject, to the satisfaction of its judgment, property of George A. Leslie in the hands of appellant. The amended . and supplemental bill proceeds on the same grounds, set* ting up, in addition, the composition agreement, by the terms of which complainant’s claim is to be paid in full. The withdrawal of Mrs. Leslie’s objections to the report of Master Winchester, finding her and Miller’s notes, on which judgments were confessed, fraudulent, and her consent to the approval of that report, was a virtual confession that- the notes were fraudulent as to creditors, as was also her consent, and that of her husband and Miller, to the composition agreement of Jtfly 20, 1897. Appellant demurred to the amended and supplemental bill, and subsequently answered it. It seems well settled that an answer to a bill, previously demurred to, overrules the demurrer. Story’s Eq. Pl., 9th Ed., Sec. 462; Mitford and Tyler’s Pl. & Pr. in Eq., p. 304. It is objected by counsel that Mrs. Leslie did not'sign the supplemental agreement of September 10, 1897, extending the composition agreement of July 20th. Mrs. Leslie testified that she did not remember signing the paper, but that the signature looked like hers, and in her answer to the amended and supplemental bill she admits the execution of the agreement of July 20, 1897, set out in the bill, and prays the protection of the court in the enforcement of the terms of said agreement. We think the finding that she signed the extension agreement fully warranted by the evidence. Without referring to the evidence in detail, which is very voluminous, we think it fully justifies the finding of the ' court, that the trust agreement for the disposition of -George A. Leslie’s property was fraudulent as to creditors, and that the court had ample jurisdiction to require appellant to account for the disposition of the property which was turned over to him under that agreement, and to appear before the master and submit to an examination in respect thereto; and that appellant, having persistently and contumaciously failed and refused to obey the orders of the court in that regard, is liable to be charged with the full value of the property, and is not entitled to any compensation for his services as trustee. The master found that the cash value of the goods levied on, and which, under the trust agreement, were nominally purchased by appellant, was $7,560.25, and that appellant had collected of the accounts assigned to him as trustee, the sum of $298.35. The court approved this finding, and found the total amount due from appellant, after deducting certain credits, $7,566.85, with interest from September 1,1897, the date of the order directing appellant to appear before the master and account. The rule in such case is, that unless the reviewing court can say that the finding is clearly and manifestly against the evidence, it will not be disturbed. Siegel v. Andrews & Co., 181 Ill. 350, 356. Having carefully read and considered the evidence, we can not say that its weight is manifestly and clearly against the finding. The decree will be affirmed.