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In Re Conservatorship of Baker

FEBRUARY 9, 1967.

IN THE MATTER OF THE CONSERVATORSHIP OF LLOYD H. BAKER, AN INCOMPETENT. THE JOHN WARNER BANK, A CORPORATION, CONSERVATOR OF THE ESTATE OF LLOYD H. BAKER, AN INCOMPETENT, PETITIONER-APPELLEE,

v.

CLAUD KELLERHALS, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of DeWitt County; the Hon. WILLIAM C. GALVIN, Judge, presiding. Reversed.

TRAPP, J.

Respondent appeals from an order of the Circuit Court entered at the conclusion of citation proceedings under chap 3, § 183 et seq. (Ill Rev Stats, 1965), requiring him to deliver to the Clerk of the Circuit Court for the use of the conservator of Lloyd H. Baker, incompetent, the sum of $30,156.33.

Respondent urges, substantially as set forth in his post-trial motion, that the citation was issued pursuant to a petition limiting the court's authority to the discovery of information so that it was without jurisdiction to (1) adjudicate a controversy and enter into a formal judgment, (2) enforce collection of a debt, (3) conduct hearings and make finding of fact with reference to indebtedness and related matters, (4) deprive respondent of his right to a jury trial, and (5) enter a formal order or judgment in the absence of pleadings seeking such relief.

The order of the court included findings that the respondent had established a fiduciary relationship with the incompetent, Lloyd Baker; that there was no debtor-creditor relationship existing between the parties, and that the balance of funds named in the order had been converted by the respondent and unlawfully held from the conservator. For purposes of clarity, it is noted that at the time respondent and Baker engaged in the transactions relating to the money, Baker was not an incompetent person, some three years intervening between the transactions and the appointment of the conservator.

The petition stated that the conservator had been unable to discover the exact nature of the investments made by the ward with the respondent, or to discover how much respondent is indebted to the estate of the ward, and the prayer of the petition is as in the language of the citation as follows:

". . . then and there to answer such interrogatories as may be propounded to him concerning his business transactions with Lloyd H. Baker during the past ten years, and to produce, at such time and place for the examination of this Court, such papers, documents, records, cancelled checks, notes, receipts and every other thing, of any kind and character, relative to his transactions with Lloyd H. Baker during the past ten years now in his possession."

Pursuant to such citation, respondent appeared and answered questions propounded in behalf of the conservator on some three days of hearings held throughout a period of several months. Upon his being assured by counsel and the court that there were no more questions on discovery and that he would not be held in contempt upon the citation, respondent and his counsel left the court and were not present while the hearings continued with certain testimony given by the incompetent, the conservator, and others.

This record requires analysis of the statute concerned and the procedures thereunder. Art XV of the Probate Act, chap 3, § 183 et seq. (Ill Rev Stats, 1965) entitled "Citation To Recover Property and Discover Information" includes § 183 providing for a verified petition under which the court shall order a citation directed to any person:

". . . whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, . . . which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his executor, administrator, guardian, or conservator or (2) to have information or knowledge withheld by the respondent from the . . . or conservator and needed by the . . . or conservator for the recovery of any property by suit or otherwise. . . ."

Section 184 designates the persons entitled to file such a citation and includes the language:

". . . In addition to the prayer for the issuance of the citation the petition shall contain papers for the relief sought by the petitioner as in other cases."

Section 185 of the Act provides:

"At the hearing the court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires. . . ."

The section continues to authorize the enforcement of the court's order if the respondent refuses to answer proper questions put to him, or refuses to obey an order ...


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