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Estate of Isaacson v. Hertz

ILLINOIS APPELLATE COURT — FIRST DISTRICT, FOURTH DIVISION.


FEBRUARY 15, 1967.

ESTATE OF MARVIN L. ISAACSON, DECEASED, GENERAL FEDERAL SAVINGS & LOAN ASSOCIATION, CLAIMANT-APPELLEE,

v.

ALAN J. HERTZ, SUCCESSOR EXECUTOR OF ESTATE OF MARVIN L. ISAACSON, DECEASED, RESPONDENT-APPELLANT.

Appeal from the Circuit Court of Cook County; the Hon. JAMES M. CORCORAN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

This appeal has been taken from an order allowing the claim of General Federal Savings & Loan Association in the amount of $72,051.57 against the Estate of Marvin L. Isaacson, deceased. The basis for the claim was a non-recourse mortgage note made to claimant by Chicago National Bank, as Trustee. The payments required by the note were guaranteed by three individuals, including the decedent, Marvin L. Isaacson.

In the trial court there was no defense raised to the merits of the claim, but respondent contended there, as here, that the obligation of the three guarantors was joint and not several, and that the claim could therefore not properly be allowed since the other guarantors had not been joined.

We find no validity in respondent's argument. The language of the note, *fn1 when considered in its entirety, seems to create a joint and several liability on the part of the guarantors. However, even if respondent were correct in his contention that the wording of the note should be construed to create a joint guaranty obligation, no relief could be afforded him in that situation. By statutory enactment, in effect since 1874, it has been provided that "all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants." Ill Rev Stats 1963, c 76, § 3.

Furthermore, the Civil Practice Act applies to this type of probate proceeding (Ill Rev Stats 1963, c 3, § 5) and section 27 thereof provides:

All parties to a joint obligation, including a partnership obligation, may be sued jointly, or separate actions may be brought against one or more of them. A judgment against fewer than all the parties to a joint or partnership obligation does not bar an action against those not included in the judgment or not sued. Nothing herein permits more than one satisfaction.

Ill Rev Stats 1963, c 110, § 27.

These statutes are so clearly determinative of the kind of contention raised in this case that, understandably, there have been very few decisions on the subject. See, however, Northeastern Coal Co. v. Tyrrell, 133 Ill. App. 472, 477; Poiset v. Townsend, 166 Ill. App. 384, 388-389; Albers v. Holsman, 289 Ill. App. 239, 244, 7 N.E.2d 161; Gage v. Mechanics' Nat. Bank of Chicago, 79 Ill. 62, 63; all of which support the conclusion reached by the trial judge in the case now before us.

The authorities cited by respondent do not appear to us to be relevant to the instant issue. Those cases are: Sinnickson v. Richter, 140 Ill. App. 212, 214; Vilter Mfg. Co. v. Loring, 136 F.2d 466, 468-470; Kesner v. Faroll, 268 Ill. App. 531, 540; Castle v. Powell, 261 Ill. App. 132, 144; Phoenix Mfg. Co. v. Bogardus, 231 Ill. 528, 531, 83 N.E. 284.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.


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