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Fisher v. Jacobs

FEBRUARY 28, 1963.

THOMAS H. FISHER, PLAINTIFF-APPELLANT,

v.

JOHN K. JACOBS, DEFENDANT-APPELLEE; THE FIRST NATIONAL BANK OF CHICAGO, ET AL., GARNISHEES-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. FRANK R. LEONARD, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiff Thomas H. Fisher brought this attachment proceeding in the Circuit Court of Cook County to collect from nonresident defendant John K. Jacobs the sum of $1,745.13, claimed due plaintiff for attorney's fees. On motion of one of the garnishees, the trial court dismissed the entire case "for lack of jurisdiction." Plaintiff appeals.

The basic facts are not disputed. The property described in the attachment writ was "money due John K. Jacobs from trust assets of a value of $2,000 forming part of the trust estate in the hands of The First National Bank of Chicago, as Trustee under the Will of Otto Young, Deceased, and John E. Sullivan, Alfred M. Rogers and The First National Bank of Chicago as Trustees under the Conveyance and Liquidation Trust Agreement." The $2,000 is part of the Marie Louise Brill share of the Otto Young trust estate and is still in the possession of the garnishees. The garnishees contend that the funds are not subject to attachment or garnishment because (1) they are in custodia legis of the U.S. District Court; (2) they are trust funds; and (3) they are protected by a spendthrift clause.

Nonresident defendant Jacobs was served by publication; he entered no appearance and has not participated in these proceedings. All of the garnishees have entered their appearances by filing notices and stipulations.

The order of dismissal was entered on an unverified motion of garnishee The First National Bank to dismiss the action as to it on the ground that the court had no jurisdiction over the assets described in the attachment writ. The motion included statements of facts to support the basic contentions. Within 30 days after the entry of the order of dismissal, plaintiff filed a verified motion to vacate it and set forth additional facts, not theretofore included in the complaint or in the affidavit for attachment, concerning the legal status of the instant funds. Plaintiff appeals from the order of dismissal and from the denial of his motion to vacate that order.

Plaintiff contends that the court erred in denying his motion to vacate the order of dismissal. Section 50(6) of the Civil Practice Act provides that "the court may in its discretion, . . . on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable." "Whether or not a court should vacate and set aside judgments and orders previously made generally rests in the sound discretion of the court, depending on the facts presented." (People ex rel. Elliott v. Benefiel, 405 Ill. 500, 505, 91 N.E.2d 427 (1950).) And it is only where there has been an abuse of discretion that a reviewing court will interfere. Dalton v. Alexander, 10 Ill. App.2d 273, 135 N.E.2d 101 (1956); Busser v. Noble, 8 Ill. App.2d 268, 131 N.E.2d 637 (1956); Charles Ford & Associates v. Goldberg, 7 Ill. App.2d 241, 129 N.E.2d 337 (1955).

Plaintiff's verified motion shows that on December 30, 1960, a consent decree was entered in the U.S. District Court in Chicago in case No. 43 C 1043, entitled DeKorwin v. First National Bank of Chicago. In part it decreed:

"B. Pursuant to the findings and conclusions hereinabove set forth the Testamentary Trustee and the Liquidation Trustees are directed:

"1) to pay and distribute out of the segregated share of MARIE LOUISE BRILL the following sums in cash jointly to the following named persons and their attorneys of record, if any, as indicated below:

Assignee or Subassignee Attorney Cash

John K. Jacobs Louis L. Kahn $5,355.45 Jack A. Diamond

"L. The Court finds that there is no just reason for delay before the entry of this Decree as a final judgment and hereby directs that this Decree be entered as a final judgment."

Plaintiff relies on the terms of the above decree to disprove the contention of garnishees that the funds sought to be garnished are in custodia legis, as held in DeKorwin v. First Nat. Bank, 267 F.2d 337 (1959), where, in discussing the Otto Young trust estate, it was said (p 340):

"It necessarily follows that the District Court acquired jurisdiction in rem or quasi in rem. It must and does control the trust estate and, therefore, has jurisdiction to adjudicate all claims to the res to the exclusion of any court of co-ordinate jurisdiction in order that distribution can ...


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