Weaver v. Chicago Title & Trust Co. ( 1907 )

Mr. Justice Adams

delivered the opinion of the court.

The bill in Buda Foundry & Manufacturing Company v. Gillett et al. was filed June 10, 1893, and appellant was served with summons as a defendant to the bill, as he admits in his petition. He states in his petition that he never authorized Mr. Thoman to act for him, as his solicitor in the cause, and we think it apparent from the petition that he did not intend to employ any solicitor to represent his interest in the cause, and that, if Mr. Thoman had not filed his appearance, and an answer for him, no appearance or answer would have been filed, and he would have been defaulted and the bill taken for confessed against him. He says, in his petition, that when served with summons in the cause, he was hopelessly insolvent, and “then believed and now believes that he had a good and meritorious defense to the claim made against him in the above entitled cause; but that owing to his insolvent and impecunious condition, at the time he was made a defendant, in said cause, and for a long time thereafter, he believed, on the one hand, that a decree against him in said cause would be entirely uncollectable, and, on the other hand, he could not afford the expense of retaining a lawyer to defend him against the said claim.” Also, when Hamline said he regretted having been compelled to make him a defendant to the bill, he avers, in his petition, that he answered thus: “To which remark your petitioner replied that he understood very well that said Hamline had to do his duty in the matter; but that your petitioner was so hopelessly insolvent that he did not care what the result of said litigation might be against him.” The only reasonable conclusion from these averments is as we think, that Weaver not only did not intend, but deliberately omitted to employ a solicitor in the cause, or to enter his appearance, or make any defense therein. In the petition it is averred that, some time during the month of May, 1905, he received from Mr. Thoman a letter informing him that a decree was about to be entered in the cause. He does not state what time in May he received this letter, but, presumably, it was before May 20, at which date the decree was entered, and, for aught appearing in the petition, it may have been received by him the first week in May, and the petition must be taken most strongly against appellant. Although he admits receiving the letter and, therefore, must be presumed, in the absence of an averment to the contrary, to have had it in his possession when he filed the petition, he does not give its date or the date when he received it. As he resided in the city of Chicago, he must have received it very soon after it was mailed. If he received the letter long enough before May 20 to have presented his petition before that date, and neglected to do so, he was not entitled to a hearing after the entry of the decree, in the absence of a sufficient explanation of the delay. It does not appear from the petition that Mr. Ham-line knew that Weaver had not appeared or answered in the cause, and we are inclined to the view that, in stating to Weaver that his discharge in bankruptcy was a complete protection to him, he must have supposed that the discharge was pleaded. So far as appears from the petition he was not informed that it was not. Mr. Hamline was a lawyer of ability and large experience, and being also a man of integrity, he would not have advised Weaver that an unpleaded discharge would protect him. Mr. Hamline may also have said, in good faith, and on the hypothesis that the discharge was, or would be pleaded, that he would not take a decree against appellant’s testator. If the discharge were not pleaded, Mr. Ham-line could not have protected Weaver against a decree, because he represented only four of the complainant creditors, a number of other complainants being represented by other counsel, and there being over 100 other creditors, not represented by counsel, whose claims were pressed.

. Counsel for appellant 'assume that the learned chancellor was, and this court is, limited to the consideration of what appears in the petition, in passing on the question, whether the prayer of the petition should be granted. We think this view entirely too narrow. The petition was merely a formal application to the court to set aside the decree as to the petitioner, and permit him to file a cross-bill setting up his discharge in bankruptcy. This was the substance of the matter, and notwithstanding the ore terms demurrer to the petition, the court could rightfully consider any proceedings or evidence in the cause relevant to the application.

Mr. Weaver, May 14, 1898, testified before the master in his own behalf, and was examined by Judge Thoman, and testified, among other things, that he was a defendant in the cause. On cross-examination the witness was interrogated and answered as follows:

Q. “You have been present here upon various occasions, during the taking of the testimony in this case, have you not?”

A. “No, sir.”

Q. “Have you not been present before today?”

A. “I was here for a short time one day.”

Q. “And has your counsel, Judge Thoman, discussed the matter with you, in reference to your testifying here today?”

A. “Very slightly. I spoke”—

Q. “Well, has he mentioned it to you at all?”

A. “He mentioned it to me this morning, when we came into the court room.”

Judge T'homan: “And yesterday afternoon.”

Q. “You knew, when you were here several weeks or months ago, you knew you were a party defendant, did you not?”

A. “Yes, but I was in hopes they would skip me through. ’ ’

The court must be presumed to have been familiar with this evidence, in passing on Mr. Weaver’s petition. We are of opinion that the court did not err in dismissing the petition of appellant’s testator for want of equity, and the decree will be affirmed.

Affirmed.

Mr. Justice Brown took no part in the consideration or decision of this appeal.