Appeal from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Plaintiff seeks to recover from the defendants, an administrator and her surety, $2,950 paid by plaintiff to the administrator in settlement of a wrongful death action. The administrator subsequently repudiated the settlement and did not return the money. The complaint consists of two counts, the first predicated on the misconduct of the administrator, and the second against her surety on her official administrator's bond. The trial court dismissed the complaint as to the surety. Plaintiff appeals on the theory that the complaint stated a cause of action against the defendant surety.
The complaint as amended shows that Mary Waclawski was appointed administrator of the estate of Zygmunt Waclawski, deceased, and filed in the Probate Court an administrator's bond with defendant Hartford Accident and Indemnity Company as surety, and that the provisions of the bond included the following:
"The condition of this obligation is such that if the said Mary Patricia Waclawski, administratrix of the estate of Zygmunt Waclawski, deceased, faithfully discharges the duties of her office according to law and does all acts which may at any time be required of her by law or by a court, then this obligation is void; otherwise it remains in full force."
The only asset of the estate was a wrongful death action against Joseph Herrera, who was insured by plaintiff's predecessor corporation. On November 24, 1954, the Probate Court approved a settlement of the cause of action by the administrator for $2,950, and on that day, plaintiff delivered its draft in that amount to the administrator who endorsed and cashed it. Thereafter, on December 21, 1954, the administrator "appeared before the Probate Court of Cook County and repudiated the settlement set forth above and procured an order of the Probate Court of Cook County setting aside the order of November 24, 1954 approving the settlement."
The complaint further states that on February 15, 1955, the administrator filed suit in the Superior Court of Cook County against Joseph Herrera, alleging as a cause of action the wrongful death of the decedent. On March 22, 1961, the administrator appeared before Judge Henry W. Dieringer, a Judge of the Superior Court, and procured an order which set aside the release of the cause of action against Joseph Herrera, and also ordered the administrator to repay the $2,950 within 60 days, which the administrator failed to do. This failure to pay is the basis of the present action. Count II charges that by virtue of the above described bond and the wrongful conduct of the administrator, defendant Hartford, as surety, is indebted to plaintiff in the sum of $2,950, together with interest.
The administrator answered both counts and admitted, in substance, all of the allegations of the complaint. For a further answer, the administrator states "that the deprivation of said sum on the part of the plaintiff is not due to any wrongdoing of this defendant, but was done in pursuance to her duties as Administrator."
Hartford moved to dismiss Count II, and its motion states that "plaintiff has failed to state a cause of action against this defendant, in that the acts and doings of the said Mary Patricia Waclawski, Administrator, . . . were in compliance with valid orders of the Probate Court of Cook County, Illinois."
A supplement to Hartford's motion to dismiss states that the Administrator's bond "is now void, for the reason that the administrator has performed all acts required of her by the court in which the bond was given, accepted and approved . . .," and that "the Order approving settlement and authorizing distribution is not subject to collateral attack but can only be attacked in the Court that entered the Order. The present proceeding is a collateral attack upon a valid Order of the Probate Court of Cook County."
The trial court sustained the motion and supplemental motion of Hartford, struck and dismissed the complaint as to Hartford, and entered an order "that there is no just reason for delaying enforcement or appeal therefrom."
Plaintiff contends that Hartford's motion to dismiss admitted all of the allegations of fact contained in Count II (Villareal v. Trevino, 30 Ill. App.2d 77, 83, 173 N.E.2d 582 (1961)), and that the facts state a cause of action against Hartford, as surety on the administrator's bond.
Plaintiff argues that the "condition" specified in the bond, that "Mary Patricia Waclawski . . . does all acts which may at any time be required of her . . . by a court," has been violated, since she has not complied with the order of the Superior Court requiring repayment of the sum she received from plaintiff in settlement of the wrongful death action.
Plaintiff further asserts that its complaint is not a collateral attack on the Probate Court's order of approval of the settlement entered on November 24, 1954; that the order entered in the Superior Court on March 22, 1961, which set aside the release and ordered the repayment, was consistent with the order of the Probate Court entered on December 21, 1954, setting aside its settlement approval order of November 24, 1954, and that the administrator "herself elected not to retain the settlement proceeds but rather to litigate her claim. The Probate Court did not say she could keep the settlement proceeds, too, but said in effect only that she was not bound to retain them if she wanted to sue instead."
Defendant Hartford concedes that its motion to dismiss admits the release was set aside by the Superior Court trial judge, but Hartford does not admit the refusal to repay the funds previously distributed by the Probate Court was wrongful. "Perhaps the trial judge erred in setting aside the release. Perhaps he should have let the release stand and that would have ended the matter. There is no reason to believe plaintiff would not have been satisfied with such a result at that ...