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Burr v. State Bank of St. Charles





Appeal by plaintiff from the Circuit Court of Kane county; the Hon. CHARLES A. O'CONNOR, Judge, presiding. Heard in this court at the February term, 1951. Affirmed in part and reversed in part, and remanded with directions. Opinion filed July 12, 1951. Rehearing October 4, 1951. Released for publication October 4, 1951.


Rehearing October 4, 1951

The original complaint in this cause was filed June 23, 1941. Subsequently, a second amended complaint containing two counts was filed November 10, 1949. Count I is an equity count for a discovery and an accounting, and count II is at law for damages. Count I alleged that appellant owned a farm and the appellee became the owner of certain indebtedness secured by two mortgages on it and that as further security for said indebtedness appellant gave appellee a quit claim deed for the farm; that thereafter appellee filed a forcible entry and detainer proceeding against appellant and procured a judgment of possession from which judgment appellant appealed, and the bond became a supersedeas; that this judgment in the forcible entry and detainer case awarding possession of the premises to appellee was reversed by the Appellate Court which held that the deed was merely a mortgage. (State Bank of St. Charles v. Burr, 283 Ill. App. 337.)

Count I of the second amended complaint then alleged that appellee thereupon filed its foreclosure proceeding in the circuit court and appellant filed a counterclaim resulting in a judgment against appellee for damages for trespass; that thereafter appellee obtained a decree of foreclosure on October 22, 1936, from which decree appellant prosecuted an appeal to the Appellate Court, and the appeal became a supersedeas by filing a bond on December 3, 1936; that thereafter the judgment and decree were affirmed and rehearing was denied May 6, 1938 (State Bank of St. Charles v. Burr, 295 Ill. App. 15); that thereafter the Supreme Court in State Bank of St. Charles v. Burr, 372 Ill. 114, held that from December 3, 1936, the date the bond was filed, to May 6, 1938, the circuit court was without jurisdiction or power to proceed with the enforcement of the decree.

Count I of said second amended complaint further alleged that appellee, through its attorneys, wilfully, wantonly and maliciously violated the supersedeas and caused the master in chancery to sell the property described in the decree of foreclosure over the objections of appellant on January 8, 1937; that on January 29, 1937, appellee presented and procured the approval by the court of the report of sale and for distribution; that on April 22, 1938, the master in chancery executed a deed to the property to the purchaser, which was recorded June 9, 1938; that on April 29, 1938, the receiver was discharged and his final report and account approved, and that said report recited that possession of the property had been turned over to appellee.

The count I of said second amended complaint then alleged that appellee prior to April 29, 1938, without the knowledge or consent of plaintiff and in disregard of the supersedeas, with force and arms, wilfully, wantonly and maliciously took possession of the premises and wrongfully held possession until January 15, 1940, when a receiver was again appointed; that appellee procured a writ of assistance for part of the dwelling occupied by the appellant, and appellant vacated the dwelling in February, 1939, and appellee remained in possession of all the premises until January 15, 1940; that on November 14, 1938, appellant filed a petition asking the court to set aside the master's report of sale and distribution and to cancel the master's certificate and deed; that the prayer of said petition was denied on December 17, 1938; that this order was, on October 10, 1939, reversed in State Bank of St. Charles v. Burr, 372 Ill. 114, the court holding that the master had no power to proceed to sell the land; that upon the remandment of the case, the circuit court, on November 20, 1939, set aside the sale, the order approving the master's report of sale, the certificate and the deed issued in pursuance thereof, and the master was directed to advertise and sell the property pursuant to the decree of October 22, 1936. Said count I then alleged that appellee failed to account for the sums received from the premises from April 29, 1938, to November 20, 1939, nor was any credit given appellant on the original decree, nor did appellee account or offer to account for such sums prior to the resale of the premises December 15, 1939.

Count I of the second amended complaint then charged that the sale and deed were void; that the possession under the void deed was illegal and wrongful and a trespass on appellee's rights; that from April 29, 1938, to January 15, 1940, appellee converted appellant's property, planted and harvested the crops, and took various items produced on the farm, but that appellant is the owner of the money and property into which the crops and the produce were converted.

Said count I then alleged that there was no adequate remedy at law because the accounts were involved and complicated and the amount, value and disposition of the crops were unknown to appellant but known to appellee and that appellant needed an accounting in order to prepare for trial in the action at law under count II. The relief prayed was that appellee be required to account to appellant for all the property, crops, and produce taken from or produced on appellant's land from April 29, 1938, to January 15, 1940, and for the money or property into which said crops were converted, and that appellee be required to answer some fifty interrogatories.

Count II of said second amended complaint realleges all the allegations of said count I and concludes that by reason of appellant's ownership of the land, that all the crops and produce became the property of appellant and that by reason of the conversions by appellee, as set forth in said count I, appellant became the owner of the money and property into which the crops and produce were converted, all to the damage of appellant in the sum of $50,000, and that by reason of the wilful, wanton and malicious conduct of appellee, appellant is entitled to exemplary punitive damages in the sum of $150,000.

Motions to dismiss each count were filed by appellee. As grounds for dismissing count I, appellee alleged that the court in chancery did not have jurisdiction of the subject matter and that the plaintiff had an adequate remedy at law. As to count II, the motion set up that count II did not state a cause of action; that it sets up only conclusions of the pleader and did not allege facts upon which the conclusions were based; that on its face, the complaint showed that all acts were done by appellee pursuant to orders of the circuit court and that, therefore, appellant was not entitled to exemplary damages. The court sustained the motions to dismiss, and both counts were dismissed, and the plaintiff below prosecutes this appeal.

Appellant insists that even if his remedy at law was adequate he was entitled to a discovery and accounting in aid to his suit at law in order to be able to ascertain the value of the property converted and the dates of conversion. Appellee contends that the claim of appellant is solely for damages, and therefore his remedy at law is adequate.

[1-4] The ultimate relief sought by appellant is damages for the conversion of the crops and the produce of the farm involved in the foreclosure suit during the period of appellee's possession. To establish appellant's right to have the court exercise its equitable powers, his pleading must show that he has no adequate remedy at law and must allege some special or substantial ground of equity jurisdiction such as fraud, the need of discovery, the mutuality or complexity of accounts or the existence of a fiduciary relation. (Allen v. Illinois Mineral Co., 299 Ill. App. 537.) Appellant, in order to secure an accounting under count I to establish his cause of action under count II, must allege facts that will authorize the court to take jurisdiction in equity. An accounting for rents and profits by parties alleged to be in wrongful possession will not give equity jurisdiction where such accounting can be had in a proper action at law. The facts alleged in count I do not show that appellant is entitled to the accounting sought. He can get such discovery as he needs by motion under Section 58 of the Civil Practice Act. (Ill. Rev. Stat. 1949, ch. 110, par. 182) [Jones Ill. Stats. Ann. 104.058]. The court did not err in sustaining appellee's motion and dismissing count I of the complaint.

The allegations of count II of the second amended complaint gave a full history of the litigation. The allegations with reference to the acts of appellee and its attorneys before the court in the foreclosure proceedings and in taking possession of the property described them as wilful, wanton and malicious and an abuse of process. These descriptions of appellee's acts are mere conclusions of the pleader and are not supported by the facts set out in the pleading and are therefore not admitted by the motions to dismiss. (Stenwall v. Bergstrom, 398 Ill. 377, 383.)

Appellant's case is based on the allegations of fact that appellee had possession of the property during the period from April 29, 1938, when the receiver who was originally appointed was discharged, to January 15, 1940, during which time, it is alleged, it was a trespasser and received the crops and other produce of the property and converted them to its own use and thereby made itself liable for their value. In addition ...

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