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Lurie v. Dombroski

APRIL 1, 1957.

SAMUEL C. LURIE, PLAINTIFF-APPELLANT,

v.

PETER DOMBROSKI, DEFENDANT, AND JULIA DOMBROSKI, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry county; the Hon. WILLIAM M. CARROLL, Judge, presiding. Order and decree affirmed. JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.

This cause arises in part out of certain transactions referred to in the case of Dombroski v. Dombroski, passed on by this court and reported in 345 Ill. App. 460; and the case of Lurie v. Dombroski, 7 Ill. App.2d 543, wherein the appeal was dismissed for want of a final appealable order.

The complaint filed herein on July 8, 1954 against Peter Dombroski and Julia Dombroski alleges:

That on July 8, 1932, a judgment was recovered in the Municipal Court of Chicago by the Receiver of Lincoln Trust & Savings Bank against Peter Dombroski for $15,897.63, and costs, and execution was issued thereon, and was personally served on Peter Dombroski, and returned unsatisfied; that on December 20, 1945 said judgment was assigned to plaintiff; that on January 3, 1952 said assignment was filed with the clerk of the Municipal Court; that thereafter plaintiff brought suit on said judgment in the McHenry County Circuit Court against Peter Dombroski, and on March 19, 1954, a judgment was rendered thereon against Peter Dombroski for $20,928.12 and costs of suit; that an execution was issued on said last mentioned judgment and returned July 1, 1954 unsatisfied.

That Julia Dombroski was at all times therein mentioned, and now is the wife of Peter Dombroski, and Marie Dee is the daughter of said Peter and Julia Dombroski.

Plaintiff states on information and belief that on and prior to September 30, 1936 one Henry Francis Vallely was an attorney at law, admitted to practice in Illinois and was an agent and attorney of Peter Dombroski and as such agent and attorney had in his possession and under his control large sums of money, the property of Peter Dombroski; and that on or about said date the said Henry Francis Vallely, with the funds and money of said Peter Dombroski, purchased certain real estate described in the complaint, in McHenry County, from Theodore Hamer, as trustee, and took title thereto in his own name, without the notice, knowledge or consent of Peter Dombroski; and that by reason thereof a trust in said real estate resulted in favor of Peter Dombroski.

That in July, 1937 the said Henry Francis Vallely caused the title to said real estate to be conveyed to Julia Dombroski. That on July 15, 1940, Julia Dombroski conveyed said real estate to Marie Dee and that on May 1, 1946 Marie Dee reconveyed said real estate to Julia Dombroski; that no consideration was paid for any of said conveyances, but the same were taken by said grantees with knowledge of the rights and interest of Peter Dombroski, and that said real estate was so taken and held in trust for Peter Dombroski by said Henry Francis Vallely; that said conveyances were so taken and title held with intent to hinder, delay and defraud the creditors of Peter Dombroski; that Julia Dombroski now is, and has been, residing on said premises and may claim a homestead therein.

The prayer for relief was that said real estate be declared to be the property of Peter Dombroski, and that the same be sold by an order of court and the proceeds applied to the payment of the judgment of plaintiff, subject to the right of redemption; that the court order such conveyances by the defendants or any one or more of them as may be required to vest the title of record in the said Peter Dombroski and in the purchaser at such sale, and in the event of their failure to convey, the master in chancery make such conveyances; and for general relief.

The appellee, Julia Dombroski, filed a motion to dismiss the complaint, supported by her affidavit as to the truth of the statements contained therein. The matters principally relied on in said motion were that the action of the plaintiff, appellant, was barred by the Statute of Limitations and by laches. On February 21, 1955 an order was entered by the circuit court sustaining the motion of appellee and dismissing the complaint as to appellee.

Later plaintiff, appellant, filed a motion supported by affidavit of Joseph Rosenbaum, his attorney, on March 18, 1955, asking the court to vacate and expunge the order entered on February 21, 1955, to grant a rehearing on the complaint and the motion of Julia Dombroski to strike said complaint, and on such rehearing to grant the plaintiff leave to file instanter his first amendment to his complaint, and for a rule on the defendants to plead to the complaint as so amended. The affidavit filed in support of said motion sets forth that the proposed first amendment to the complaint was presented with said motion. The affidavit of counsel states, and the proposed first amendment showed, that a suit of Peter Dombroski to declare a trust for him in the real estate described in the complaint, and to have said lands conveyed to him, was instituted in March, 1941, within five years of the conveyance of said lands to Henry Francis Vallely, and of the original conveyance to the defendant Julia Dombroski, and is still pending, so that the equitable interest of Peter Dombroski is a subsisting one and not barred by either the Statute of Limitations or laches. Said affidavit also states that the affiant called the clerk of the McHenry County Circuit Court and was informed by the clerk that the case wherein Peter Dombroski is plaintiff and Henry Francis Vallely, Julia Dombroski and others are defendants, was still pending; "that the averments in said amendment relating to the contents of the complaint of the plaintiff Peter Dombroski in said suit, the issuance of summons, appearances and answer of said Julia Dombroski are as set forth in an abstract of record prepared and filed February 10, 1951 by her attorneys in the Appellate Court of Illinois, Second District, in the appeal therein docketed as No. 31894."

The above mentioned case was transferred from the Supreme Court to this court, and the decision of this court therein is reported in 345 Ill. App. 460.

The proposed first amendment to the complaint copied the allegations of the complaint in the primary suit, and attempted to appropriate the claim of Peter Dombroski on behalf of plaintiff, appellant, in this cause, and compel the appellee to litigate those questions in this cause while the primary suit involving the same identical questions is pending and undetermined. On a rehearing of said motion filed by appellee to dismiss the complaint, and on the hearing of the motion of plaintiff above mentioned for leave to file the first amendment to the complaint, the order was entered March 18, 1955, from which the former appeal was taken. The memorandum of the trial court in determining the issues on the motion to strike the complaint appears in the abstract and the views of the trial court on the rehearing of said motion were the same as expressed in the original memorandum.

After the mandate of this court dismissing the former appeal was filed in the trial court, an order was entered on August 23, 1956, dismissing the complaint and suit against both defendants for want of equity, from which later decree plaintiff has taken this appeal.

The record in this case consists entirely of the pleadings and orders of court, and there was no evidence taken at the hearing.

The plaintiff's theory is that Peter Dombroski was the beneficiary of a resulting trust in the real estate in question; that a suit by him to establish a resulting trust is an action for the recovery of lands and, 20 years not having elapsed, would not be barred by section 1 of the Statute of Limitations; that his equitable estate was subject to the payment of the judgment against him; that this suit is an equitable levy; that plaintiff, as the assignee of the judgment, has the same rights as his assignor (who was a judgment creditor with execution returned nulla bona at the time of the acquisition of the real estate in question) notwithstanding that the assignment may have been made after the acquisition of the real estate and its subsequent conveyances; and that the various grantees having taken without consideration and with notice of Peter's rights acquired the real estate subject to the trust interest of the judgment debtor; and the amendment proposed would have shown ...


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