Stanmeyer v. Rosenwald

Mr. Justice Browh delivered the opinion of the court. There is a motion of appellee in this cause reserved to the hearing, “to strike from the record the certificate of evidence filed in the above cause, and to affirm the decree entered on July 18, 1904.” Suggestions in support of this motion show that the position is taken by counsel for appellee that the one. action of the court must necessarily follow the other. This is not so. The certificate of evidence must be stricken from the transcript, but there still will remain the appeal to dispose of, on that transcript which remains. The necessity for acceding to the motion “to strike the certificate of evidence from the transcript of the record,” and to disregard it in this cause entirely, is that the decree appealed from was entered at the July term, 1904, of the Superior Court, and no certificate of evidence was signed during that term, nor was there a rule entered having the effect to carry over the power of the court to sign such a certificate until the next term. There was an undoubted intention to do so, but through inadvertence it was ineffective. There is certainly nothing in the order for allowance of the appeal, which reads thus: “Appeal prayed and allowed on filing bond in the sum of Four Hundred ($400) Dollars within twenty (20) days, and certificate of evidence in—■—— -days,” from which we can read into the blank, “twenty” or any other number. Had the certificate of evidence been presented during the July term, the court would have had power to sign it and make it a part of the record, but it had no such power after that term, because on entering the decree it had reserved none. If the court had possessed the power to act on the certificate of evidence after the July term, we should have had, however, no hesitation in deciding that an extension of time in which to file it to September 20, gave to appellant all of the 20th of September for that purpose. Burhans v. The Village of Norwood Park, 138 Ill., 147, cited by appellee, has no proper application here. Counsel for appellant, however, declare that they consider the certificate of evidence of little importance, and that they regard the findings of fact in the decree insufficient to justify it. It undoubtedly seems hard that a receiver appointed by the court, with a general leave given him out of such moneys as he receives to pay taxes and assessments and make such. repairs as may be necessary and proper, should find his payments for water taxes and for repairs disallowed, and be compelled to account for money which he had thus expended, but we do not see how we can avoid the conclusion that a prima facie justification for the ordering portion of the decree of July 18, 1904, is contained in its findings of fact. Those findings are in effect that appellee was, from and after April 14, 1897, the owner, subject to the mortgage .incumbrance foreclosed in the cause, of the premises in question and entitled to the rights of such owner; that on January 4, 1898, the premises were sold to Weidner under the foreclosure decree for enough to wipe out the mortgage and decree indebtedness altogether; that although the appellee thereupon became entitled to all the rents, profits and issues collected by the receiver for the succeeding fifteen months, yet the receiver expended the whole of this sum, being $295, upon the premises at the instance and by the direction of the complainant Weidner, and that the premises have been improved and benefited to the extent of the expenditure. These findings seem to us, in the absence of any evidence whatever otherwise preserved in the record, sufficient to sustain the decree. The cdmplainant took the property when he bought on January 4, 1898, cum onere, and had no right to possession of it or to income or issues from it, until the period of redemption had expired. This is the law .which the appellant, like every other citizen, was presumed to know. Tet the court finds that he expended all the money in his hands, rents and income belonging to the appellee, on the improvement of the premises, which, in case they were not redeemed, he knew were shortly to pass from the ownership of appellee and the possession of himself, to the ownership and possession of Weidner, and that he did this at the instance and by the direction of said Weidner. It is not necessary for us to decide what the. court ought to have done concerning these funds, or concerning the receiver’s report and account, on the hypothesis that there was evidence in the cause that the repairs were necessary to preserve said property or to keep it in a tenantable condition, for there is no such evidence in the record which we can consider. The receiver’s report cannot be taken by itself as sufficient evidence of it, and “the certificate of evidence” which contains the stipulation that he expended the money “as shown in his report,” is not properly before us. The prima facie right of the appellee to have the funds decreed to her, appearing by the findings of the decree, and there being no evidence to the contrary preserved, and no certificate even that there was not evidence overthrowing the sworn statements of the receiver’s report and account as to the disposition of the money which he received, we do not see what justification there would be for our disturbing the decree, even if we should hold with the appellant’s counsel that it is “unjust and inequitable to claim the benefits of the receiver’s labors * * * and dispute the outlays made by him * * * authorized by the order of his appointment, and without which the income could not have been secured.” For whether the outlays were thus authorized, or were such that without them the income could not have been collected, does not, in the present state of the record, appear. We cannot indulge in a presumption even that they were, and for anything that appears, the evidence in the cause, may have shown that they were not. It is to be remembered in considering the alleged hardship of the decree against the appellant, that he had at any time the right and opportunity “to apply to the court-for orders and directions,” and might in each case of desired repair or improvement have obtained specific orders and directions (which would undoubtedly have conformed to the law), rather than have satisfied himself with “the directions of the complainant,” and that under the doctrine of Haigh v. Carroll, 209 Ill., 576, if he has improperly paid out money for the benefit of Weidner, and has been obliged to refund it, he may have recourse against Weidner for the same. The order of the Superior Court appealed from is affirmed. Affirmed.