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Kitzer v. Rice

DECEMBER 1, 1967.

PHILLIP KITZER, PLAINTIFF-APPELLANT,

v.

L. RICE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, First Municipal District; the Hon. EDITH SAMPSON, Judge, presiding. Order affirmed.

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

This is an appeal by plaintiff, Phillip Kitzer, in an action for forcible detainer and rents due, from the entry of an order by the Circuit Court of Cook County on July 14, 1966, which order, upon the motion of defendant, Leonard Rice, dismissed plaintiff's complaint and granted a summary judgment on the facts as disclosed by the pleadings. The cause concerns the ordinary statutory proceeding brought pursuant to the provisions of Ill Rev Stats (1965) chapter 57, par 1 et seq., by landlord against tenant for possession and recovery of delinquent rents for the months of May and June, 1966, of the premises at 4146 West 83rd Street in the City of Chicago.

Save the testimony of plaintiff at the hearing on the motion, the facts of the case are limited by those which appear from the pleadings filed; i.e., the complaint, motion to dismiss and for summary judgment and reply or objections to said motion.

Plaintiff's complaint appears upon the standard form provided by the Clerk of the Court for cases of this nature. Such pleading avers plaintiff to be entitled to possession, being presently and unlawfully withheld by defendant, and joins therein a prayer for $250 rent or damages for rents due from and after May 1, 1966.

Defendant filed a motion to dismiss and for summary judgment under section 48 of the Practice Act, which motion was accompanied by the supporting affidavit of defendant, together with attached Exhibits 1 through 8 inclusive. Defendant averred in substance:

1. That on April 27, 1966, defendant received written notice from the Marquette National Bank of Chicago, by one Robert Wesley (Exhibit 1), advising him that said bank was trustee and owner of the legal title of the premises occupied under Trust No. 1489, and directing him, under threat of eviction, to make all future rental payments to Marquette Bank.

2. That since April 27, 1966, defendant has made all payments of rent to Marquette.

3. That Marquette is, in fact, trustee of the property as evidenced by the Preliminary Report of Title by the Chicago Title and Trust Company. (Exhibit 2.)

4. That on July 31, 1964, the Plymouth Insurance Agency, Inc., by plaintiff, its President, executed an assignment of the beneficial interest in said Trust No. 1489 to Allied Realty of St. Paul, Inc., a Minnesota corporation, acceptance thereof in behalf of Allied being made by plaintiff as its President as well. (Exhibit 3.)

5. That by order of the court of Ramsey County, Minnesota, on August 4, 1965, the American Allied Insurance Company, a Minnesota corporation, was declared insolvent and placed in receivership, one Homer A. Bonhiver being appointed receiver to take possession of all properties and settle the affairs of said corporation. (Certified Exhibit 4.) American had, upon the complaint of the Commissioner of Insurance of the State of Minnesota, been found guilty of considerably understating certain of its reserves and overstating certain of its assets. The court found that, among other assets of American, there was included 100% of the outstanding stock of Allied Realty of St. Paul, Inc., its wholly owned subsidiary. Plaintiff was President of both corporations. Continuing, the court stated however:

"The miscellaneous real estate located in Illinois, . . . has no value which may be attributable since American . . . refused to present any indicia of ownership when demand was made, and there was no competent evidence to establish such ownership."

6. That the appointed receiver took possession pursuant to the court order of all of American's assets, including 100% of the stock of Allied (Exhibit 5, affidavit of Homer A. Bonhiver).

7. That by Certificate of Incumbency dated February 17, 1960, (Exhibit 6), Messrs. Homer A. Bonhiver and Frank J. Hammond were appointed the certified officers of Allied, and by resolution of the same date (Exhibit 7), were authorized individually to execute powers of direction, instructions, or assignments of any documents relating to the Marquette Trust No. 1489.

8. That Bonhiver, in this capacity, directed a letter to Marquette, attention of Robert Wesley (Exhibit 8), relative to an enclosed notice (not appearing of record) which Marquette was ...


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