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Flores v. Trust Co. of Chicago

ILLINOIS APPELLATE COURT — FIRST DISTRICT, FIRST DIVISION.


MARCH 10, 1958.

LYDIA FLORES, A MINOR, BY MANUEL FLORES, GUARDIAN OF HER ESTATE, PLAINTIFF AND APPELLEE,

v.

TRUST COMPANY OF CHICAGO, LA SALLE NATIONAL BANK, IRVING PEARLMAN, EDWARD SMITH, NATHAN SMITH, GRACE DOMENECO AND IRENE SUCH, BENEFICIARIES OF TRUST NO. 4113, BUILDING AT 851 MONTROSE AVE., CHICAGO, ILLINOIS, DEFENDANTS, IRVING PEARLMAN, EDWARD SMITH AND NATHAN SMITH, DEFENDANTS AND APPELLANTS.

Appeal from the Superior Court of Cook county; the Hon. GEORGE M. FISHER, Judge, presiding. Decree affirmed as modified.

PRESIDING JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Plaintiff obtained a judgment for $25,000 in the case of Flores v. Jack Spot Inn, Inc. under the Dramshop Act (Ill. Rev. Stat. 1955, ch. 43, par. 135). After obtaining judgment plaintiff brought suit pursuant to provisions of the same Act against defendants in the instant case, as owners of the property in which the dramshop owned by Jack Spot Inn, Inc. was located, to establish a lien thereon and to foreclose the same. A decree was entered by the court pursuant to the prayer of plaintiff's complaint, finding that the judgment was a lien on the premises in the sum of $25,000 and providing for sale of the property to satisfy the lien if the judgment was not paid. Defendants in the instant case appealed from the judgment against them, and the appeal has been held in this court pending disposition of the appeals in the case against Jack Spot Inn, Inc. (Lichter v. Scher, 4 Ill. App.2d 37, 123 N.E.2d 161; 11 Ill. App.2d 441, 138 N.E.2d 66.) The issues in the two cases are substantially the same. We are this day rendering an opinion on a third appeal, confirming the judgment of the lower court which reduced the amount of recovery to $15,000 (Flores v. Jack Spot Inn, Inc., Gen. No. 47,238). Our conclusions with respect to the questions involved are contained in the opinion today rendered and in the prior opinions in the Jack Spot Inn, Inc. case.

Plaintiff argues that the points made on appeal were not raised in the hearing before the chancellor. A valid judgment in the basic case of Flores v. Jack Spot Inn, Inc., Gen. No. 47,238, is essential to the validity of a decree in the instant case. The judgment in the case of Flores v. Jack Spot Inn, Inc. as it now stands has been reduced to $15,000. The decree in the instant case insofar as it provides for a lien in excess of $15,000 is reversed. In all other respects it is affirmed.

Decree affirmed as modified.

McCORMICK and ROBSON, JJ., concur.

19580310

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