Manufacturers Paper Co. v. Lindblom , 1898 Ill. App. LEXIS 414 ( 1899 )

Mr. Presiding Justice Windes

after making the above statement delivered the opinion of the court.

Various contentions are made by appellants and appellees against and in favor of the action of the chancellor in setting aside the original decree in appellants’ favor and in dismissing appellants’ original bill for want of equity because they refused to further prosecute their said bill. Many of the points made we deem it unnecessary to consider, because of the conclusion we have reached.

This cause was before this court on an appeal by the present appellants from an interlocutory order of injunction granted upon the bill of appellees (68 Ill. App. 539). What is there said by Mr. Justice Shepard as to the nature of the bill, whether it was a pure bill of review or a bill in the nature of a bill of review, and upon the laohes of appellees, fully and properly disposes of the contentions in that regard.

The rule of the Circuit Court in question, by its express terms, while under the definition it gives of contested motions is included the motion of appellants that the demurrers be overruled, vests the court with the discretion, “ whenever in its opinion the exigency of the case requires it,” to hear a particular motion at any time. This being so, the court acted clearly within its rule in hearing the motion of appellant to overrule the demurrers without placing it on the contested motion calendar. Moreover, the fact that Judge Tuthill, who heard and disposed of the demurrers, frequently heard similar motions without their being placed on the contested motion calendar, and that it does not appear but that the counsel representing the demurrers knew of such practice, would justify the presumption that they knew of such practice. But even if they did not, they were bound to take notice of the plain provision of the rule which vested the court with such power, and when they were served with notice on Friday or Saturday before, that appellants’ counsel would on Monday, June 11, 1894, at 10 a. m., or as soon thereafter as counsel could be heard, move that the demurrers be overruled, making no objection to such notice at the time and failing to make a,nv objection known to the court, it became their imperative duty, in the interest of their clients, to attend before the court in obedience to the notice, and see to it that the motion was not heard without being placed upon the calendar of contested motions, or that they were heard, and had knowledge of the disposition made of it by the court. Appellees make an especial point in their evidence and in argument, that they relied upon the Law Bulletin for information as to the calls of the courts from day to day and the orders entered, and have, put in evidence a rule relating to the call of the trial calendar of common law cases, which has this provision, viz.: “ Announcements of the calls in the Chicago Daily Law Bulletin will be deemed sufficient to parties and their attorneys,” but they admit that they did not examine the same bulletin to see whether any order was entered on June 11, 1894, pursuant to the notices served upon them by appellants’ counsel. They also say that they ascertained from notices in the same bulletin on June 8, 1894 (and that was a fact), that Judge Tuthill’s contested motion calendar for June 11, 1894, was continued one week, but they did not examine the bulletin of June 18, 1894, to see if any disposition was made of the motion. This was inexcusable negligence on their part, and their negligence is the negligence of appellees. Kern v. Strousberger, 71 Ill. 413; Ward v. Durham, 134 Ill. 195; Schultz v. Meiselbar, 144 Ill. 26; Bardonski v. Bardonski, Id. 284.

But conceding that the notice was proper, and the court did not err in proceeding to a disposition of the demurrers upon such notice, it is argued that the demurrers should have been sustained because a receiver of the Press Company who had been previously appointed in another creditor’s bill was not a party, nor were all the stockholders of the Press Company made parties, and that both the receiver and all the stockholders were necessary parties.

We can not assent to this contention. Appellants’ bill was a creditor’s bill—not a bill to wind up a defunct corporation and distribute its assets among its creditors. In the case of a creditor’s bill against a corporation, the stock liability of any one or more stockholders may be enforced without making the other stockholders parties. Young v. Farwell, 139 Ill. 326; Siegel v. Andrews & Co., 78 Ill. App. 611.

The mere appointment of a receiver in the prior credit- or’s bill, without a conveyance to him of the Press Company’s assets, did not vest him with any such interest as made him a necessary party to appellants’ bill. Heffron v. Gage, 149 Ill. 182, and cases cited.

The fact that Lindblom in the hearing before Judge Tuley was held not to be liable, was in no way binding upon appellants, as they were not parties to that case, having withdrawn from it more than a year before, and even if they were, Lindblom should have interposed the adjudication as a defense to appellants’ bill.

The finding and decree of the chancellor that the order overruling the demurrers, all subsequent orders, proceedings and decree in appellants’ favor were inadvertently and fraudulently made, and that they were a fraud upon appellees’ rights, are manifestly against the evidence in the record. We have seen that, under the court’s rule, they were not improperly nor improvidently made and entered. While the decree is manifestly against the evidence, in so far as it sets aside the former decree and the order overruling the demurrers, and is also wholly unwarranted in dismissing appellants’ bill for want of equity instead of for want of prosecution, because they offered no evidence in support of it (Hoffman v. Schoyer, 143 Ill. 621), and must for these reasons be reversed, we are further of opinion that the negligence of appellees is such as to bar them of any relief, and that the decree should be and is reversed, with directions to the Circuit Court to dismiss the bill of Lindblom and Klein, and also the cross-bills of Wulff, Felton and Bary for want of equity.

Beversed with directions.