Ingwersen v. Buchholz , 88 Ill. App. 73 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

Appellants make several contentions, which it seems to us unnecessary to consider in detail, as they are all included under their general contention that they are without remedy at law and have therefore the right to come into a court of equity for relief.-

It should be no'téd that appellants invoked the aid of the District Court of Madison County, Nebraska, where they obtained a decree for the amount due them and for a foreclosure of their mortgage. This decree was, however, reversed, and the cause remanded to said District Court for further proceedings therein, and there is no allegation in appellants’ bill but that in the subsequent proceedings in the said District Court they were represented by attorney, and had their claim against the bank fully adjudicated in that court. In any event, their claim was before the court by their pleadings, and was a proper subject for adjudication by the court. The judgment of that court recites-that the cause came on to be heard upon the pleadings and the evidence, and from such recital it is fair to presume, in the absence of an allegation in the bill to the contrary, that appellants’ claim was considered by che court. Litch v. Clinch, 136 Ill. 410-25; Wright v. Griffey, 147 Ill. 496; U. P. Ry. Co. v. Ry. Co., 164 Ill. 88-105.

In the Litch case, supra, the court say:

“ The doctrine of res jtodicata embraces not only what has actually been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it.”

Moreover, if it can be saidfthat appellants did not have their day in, and hearing before, the District Court of Madison County, Nebraska, they have had, as shown by their bill, a hearing and adjudication of their claim on the law side of the Circuit Court of Cook County, Illinois. If the latter court committed an error in overruling appellants’" demurrer to the receiver’s replication to their plea of set-off, they have their remedy by appeal or writ of error in that case. We can not review that decision on this appeal. Appellants are not deprived of their remedy at law, as they contend, because of this ruling of the Circuit Court. Commercial, etc., Co. v. Scammon, 133 Ill. 627-31.

It may be true, as contended by appellants, that a plea of set-off is permissive and not compulsory, but it does not follow that when they are unsuccessful in their plea of set-off they may, for that reason, abandon that claim at law where they have a remedy by appeal or writ of error, and come into equity to enforce such claim.

It is not alleged in the bill when the appellants became the owners, by assignment, of the certificate of deposit in question. If the certificate was assigned to them after the appointment of the receiver of the bank, then they would not be entitled to set off their claim against the'bank to the prejudice of its other creditors. High on Receivers (3d Ed.), Sec. 247; Beach on Receivers, Sec. 702; Smith v. Mosbey, 9 Heisk. (Tenn.) 501.

The claim is made by appellants that the assignment of the bank in Nebraska is inoperative as to appellants, who are residents of Illinois, and several citations of Illinois cases are made to establish the proposition. We think the cases are not applicable. There is no claim that the bank at the time of the appointment of the receiver had any assets in Illinois, and it never had until appellants went to Nebraska, invoked the aid of the Nebraska court and sold its property situated in that State, and took the proceeds thereof away from Nebraska. The cases cited all relate to the effect of an assignment as against creditors in this State seeking to reach assets of the insolvent situated in this State at the time of the assignment.

Being of opinion that appellants have an adequate and complete remedy at law, the decree of the Circuit Court is affirmed.