Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 10, 1962.
The Circuit Court of Cook County entered a judgment dismissing without prejudice a complaint in equity for an accounting and removal of a business manager of a testamentary trust, and for injunctive and other relief. After hearing, over the objection of the plaintiff, the court, in addition to entering the judgment, assessed attorneys' fees and costs against the plaintiff in the sum of $6,687.05.
The case developed from a will made by Michael Ready, deceased. By its terms certain real property was devised to his wife, Emma V. Ready, trustee, in trust upon certain terms and conditions for the benefit of the said trustee and all of the descendants of Michael Ready. Michael Ready died on April 16, 1940 and left surviving him Emma V. Ready, his wife, and certain descendants. The real property which comprised the corpus of the trust consisted of 2,184 acres of farm land in Indiana. Following the death of Michael Ready the farms were operated by farmers who leased the farms upon certain terms agreed between them and the trustee with the advice and guidance of Walter Ready, Sr., a beneficiary. After the death of Walter Ready, Sr. the trustee appointed the defendant, Charles H. Ready, also a beneficiary, as business manager of the aforesaid trust estate, with the written consent of all the beneficiaries. After the termination of the farm leases Charles H. Ready retained and contracted with Farmcraft Service, Inc., of Oxford, Indiana, to take over the entire management and operation of all of the farms. Farmcraft Service, Inc. is a farm management organization engaged in the business of farm management, including the planting, harvesting and sale of farm crops and produce, and the feeding and sale of livestock.
On October 27, 1958 Walter Ready, Jr. filed a representative or class suit against Charles Ready on behalf of himself, the trustee and all other surviving beneficiaries except Charles Ready. An appearance, but no answer, was filed by the defendant to the complaint. Certain depositions were taken and the matter was heard at least four times before the trial judge. On January 15, 1960 defendant filed a written motion asking that all of the plaintiffs except Walter Ready, Jr. and Emma V. Ready be dismissed from the suit, that plaintiff Emma V. Ready be ordered to appear for a deposition on January 20, 1960, that she should at that time produce certain documents, that Walter Ready, Jr. be ordered to appear for deposition on January 25th, and that he also should produce certain documents. On January 15, 1960 the court entered an order that all plaintiffs except Walter Ready, Jr. be dismissed from the suit and that all matters be set for final hearing on January 22nd.
The defendant in his brief states that the plaintiffs whom the court dismissed were dismissed on their separate affidavits seeking dismissal, and that the court dismissed the trustee on motion of her attorney. The order dismissing all plaintiffs from the suit except Walter Ready, Jr. was entered on the motion of the defendant, and it stated that all plaintiffs were represented by counsel. The record further indicates that the trustee was dismissed at her request. After this order was entered, the court, on January 27, 1960, entered an order that Emma V. Ready produce certain documents on February 2, 1960, and that the deposition of Walter Ready, Jr. be taken on February 18th. The plaintiff did not appear for the deposition, and on February 24, 1960 the defendant filed a motion to dismiss the action with prejudice, costs and attorneys' fees, or in the alternative for a rule on the plaintiff to appear and show cause why he should not be held in contempt for his failure to appear for the depositions. On March 4, 1960 the plaintiff made an oral motion to dismiss the action without prejudice and without costs and attorneys' fees. Under order of court both the plaintiff and defendant filed memoranda in support of their respective motions. Prior to the filing of the plaintiff's memorandum, he had substituted attorneys. On May 27, 1960 the plaintiff, as a part of his answer to the defendant's memorandum, asked the court for leave, within a reasonable time, to file an amended complaint, and in the memorandum indicated that the amended complaint would only seek discovery and an accounting against the defendant. On June 1, 1960 plaintiff filed a motion requesting that the defendant be ordered to produce for examination "the original statements on the Michael Ready Trust Accounts Nos. 1 and 2 managed by Emma Ready as Trustee of the said Trust, at the Chicago City Bank and Trust Co. of Chicago, Illinois, together with all checks issued on these accounts since Emma Ready became trustee . . . and that he further furnish for the plaintiff's examination, originals or copies of the farm tenants' checks mentioned in annual reports prepared by Farmcraft, Inc., as farm manager and . . . any books or records indicating how depreciation factors are being handled in connection with the Trust affairs and the farms involved therewith." On the same date (June 1, 1960) the plaintiff moved to withdraw his oral motion to dismiss the cause and again asked for leave to file an amended complaint, and filed in support of his motion an affidavit of the plaintiff which set out that through an oversight of plaintiff's former attorneys he was not informed, until the day after, that records in connection with the trust had been available for his inspection the preceding day, and that access to those records was refused to him on the day after he first learned they were purported to have been available, and he further says that the action was brought for the sole purpose "of obtaining through the means provided by law, that which he feels is due him, and which he believes has not been obtained, namely, a true, accurate and complete accounting between the parties involved in said Trust, and particularly between the plaintiff and the defendant; that he has not been frivolous, has no intention of attempting to impose upon this Court, or upon any litigant or person. . . ."
The trial court on June 1, 1960 entered two separate orders. In one, after reciting that the court had heard the motions of plaintiff and defendant, that the motion of the defendant to dismiss the complaint with prejudice and for defendant's attorneys' fees and costs had been considered, together with the briefs of both parties, and that the trustee was represented by counsel, it was ordered that the plaintiff's complaint be dismissed without prejudice and that the plaintiff pay to the defendant within thirty days the defendant's reasonable attorneys' fees in the amount of $6,036 and costs in the amount of $651.05. The court entered judgment for $6,687.05 against the plaintiff and for the defendant. The second order denied plaintiff's motion to withdraw his motion to dismiss the cause without prejudice and for leave to file an amended complaint, and the motion of the plaintiff for an order upon the defendant to produce certain bank statements and records was also denied. This appeal is taken by the plaintiff from those orders.
The plaintiff in his brief states that it is his theory that the complaint states a valid action for an accounting, the removal of the business manager, and for other equitable relief; that the action is not frivolous; that both his statements in his deposition under oath and his allegations in his verified complaint are true; that his statements in his deposition under oath are not inconsistent with his allegations in his verified complaint; that the court had no right to refuse the plaintiff the right to withdraw his motion to dismiss; that it had no right to assess the defendant's costs, expenses, and attorneys' fees against plaintiff; and that the court was not justified by section 41 of the Civil Practice Act in so doing.
The defendant contends that since plaintiff demanded only discovery and an accounting from the defendant, that demand could be based only on plaintiff's false charge that defendant had exclusive possession of the trust records and had concealed them from the plaintiff, and that since plaintiff had received annual accountings and reports of trust affairs and had access to the trust books and records, dismissal of his suit for a discovery and accounting was proper. The defendant further says: "Dismissal of this case would have been proper in any event because plaintiff as a beneficiary had no right to sue an agent of the trustee for an accounting; only the trustee had that right, if any basis existed." The defendant also states that the dismissal was not procedurally defective and that section 41 of the Civil Practice Act applied.
It seems to this court that the original legal problems involved in the instant case were very simple. The defendant in his brief raised the question that the plaintiff had no right to sue the defendant for an accounting or for a recovery of trust property since the defendant is an agent of the trustee. This it seems is the critical and crucial element in the case. The complaint filed by the plaintiff attempting to set up a class suit and indicating that he was bringing suit on behalf of the other beneficiaries and the trustee was improper. The right to sue in the ordinary case vests only in the trustee. Bogert, Trusts and Trustees, sec 870, vol 4, part 1, pp 457, 459.
[2-4] Only a person occupying the position of trustee can be required to account as such. 35 ILP Trusts, sec 202. If the trustee refuses to bring the action after demand, or refuses to act, the beneficiary may bring an action making the third party and the trustee parties defendant. Bogert, Trusts and Trustees, vol 4, part 1, sec 870. The complaint in this case did not allege any demand on the trustee nor any refusal on the part of the trustee to act. Nor were the facts set up in the bill such as would make the agent a trustee de son tort. See Lehmann v. Rothbarth, 111 Ill. 185, 194-5. It would seem that defendant should have moved to dismiss the complaint at the very threshold of the suit and the motion should have been sustained. It does not seem to us that there was any necessity to take depositions or proceed any further with the cause. The trustee apparently by her own motion, or at least a motion in which all the parties acquiesced, obtained a court order by which she and all the other beneficiaries were dismissed out of the case. Certainly after such an order the court would have no right to proceed further with the suit. The motion of the defendant was a simple motion to dismiss the action with prejudice, costs and attorneys' fees, or in the alternative for the plaintiff to show cause why he should not be held in contempt for his failure to appear for a deposition under order of court. At the same time there was pending a motion made by the plaintiff to dismiss the action without prejudice and without costs and attorneys' fees. Plaintiff then filed a further motion seeking a withdrawal of the motion to dismiss and asking leave to file an amended complaint.
On June 1, 1960 the trial court entered the two orders from which this appeal is taken. The order dismissing the suit without prejudice does not indicate whether it sustained the plaintiff's motion to dismiss without prejudice or whether it sustained the motion of the defendant, modifying it to make the dismissal one without prejudice.
The practice of law in the final analysis is an art and it would seem that the work of both the trial and reviewing courts would be greatly eased if there was a greater adherence to a reasonable observance of the principles governing proper pleading. We have under the Practice Act, as revised in 1955 (Ill. Rev Stats, c 110), a provision (section 45) that objections to pleadings shall be made, where the defect appears on the face of the pleadings, by motion. Section 48 provides that this suit may be dismissed upon certain enumerated defects or defenses, among others, that the plaintiff does not have the legal capacity to sue, or that the defendant does not have the legal capacity to be sued; and if the defect does not appear on the face of the pleadings the motion shall be supported by affidavit. In section 45, subsection (5), it is provided that any ...