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Brainerd v. First Lake County Nat. Bank

JUNE 10, 1969.

ADRON PAUL BRAINERD, PLAINTIFF-APPELLANT,

v.

FIRST LAKE COUNTY NATIONAL BANK OF LIBERTYVILLE, A CORPORATION, AND WILLIAM G. HOSKINS, ROBERT O. DUNN AND MILUTIN DJORDJEVICH, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hons. LLOYD A. VAN DEUSEN, PHILIP W. YAGER, L. ERIC CAREY, and HARRY D. STROUSE, Judges, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This appeal tests the propriety of the judgment order of the trial court which dismissed the plaintiff's complaint.

The plaintiff, appearing pro se, filed a four-count complaint against the "First Lake County National Bank of Libertyville, a corp., William G. Hoskins, Robert O. Dunn and Milutin Djordjevich, et al., defendants." The four counts of the complaint were preceded by an introductory or synopsis count.

Counts 1 and II charged that the "defendant" improperly debited the plaintiff's account and unlawfully refused to honor his demand for withdrawal of funds; and asserted that by reason of this wanton misconduct, the plaintiff demanded judgment for $100,000 against each of the defendants.

In Count III, the plaintiff alleged that the defendant, First Lake County National Bank of Libertyville, committed various torts, which presumably included false arrest and malicious prosecution; and in Count IV, he asserted that the "defendant" committed such torts. In these counts he demanded judgment in the sum of $100,000 against each of the defendants. The complaint was verified and was filed June 14, 1968. The defendants were promptly served with process and an appearance was filed by attorneys on their behalf.

On July 1, notice was mailed to the plaintiff that counsel for the defendants would appear before the motion judge of the 19th Judicial Circuit, Lake County, and move the court to enter an order granting to the defendants an additional thirty days in which to answer or plead to the complaint. Such order was entered July 16.

On August 12, the defendants filed a motion to strike the synopsis count of the complaint in that its subject matter was repeated in Counts I, II, III and IV, and it contained several causes of action pleaded in one count in violation of sections 31 and 33(1) and (2) of the Civil Practice Act. (Ill Rev Stats 1965, c 110, pars 31 and 33(1) and (2).)

The defendants moved to strike the numbered counts for the following reasons:

In Count I, the plaintiff neither indicated whether one or all, or more than one but less than all of the defendants were charged with a particular act, nor specified which defendant or defendants were so charged; it affirmatively appeared on the face of Count I and its exhibits, that the defendant had complied with section 4-101 et seq. of the Commercial Code (Ill Rev Stats 1965, c 26, pars 4-101 et seq.); no facts were pleaded to show any unlawful act or breach of fiduciary duty by any of the defendants; no facts were pleaded to give rise to any claim for damages; and legal conclusions were asserted by the words, "unlawfully and in breach of fiduciary duty" and "wanton misconduct," without any facts being pleaded in support thereof.

In Count II, the plaintiff failed to plead facts which would show that on the date of his demand, there were sufficient funds in his account to honor his requested withdrawal; and it affirmatively appeared on the face of such count, that the Cashier's check was issued by the defendant Bank at the plaintiff's request and that the purported "stop order" pleaded therein was of no legal effect, pursuant to section 4-303 of the Commercial Code (Ill Rev Stats c 26, par 4-303); and that legal conclusions were asserted by the words, "unlawfully and in breach of fiduciary duty," without any facts being pleaded in support thereof.

In Count III, the plaintiff failed to state a cause of action for malicious prosecution in that it was drafted in a vague and uncertain manner and none of the defendants could determine what particular act or acts they were charged with; the plaintiff endeavored also to allege a cause of action for false imprisonment which was not pleaded in the alternative; and that legal conclusions were asserted by the words, "which was the final determination thereof in favor of the plaintiff," without any facts being pleaded in support thereof.

Count IV failed to state a cause of action because it affirmatively appeared on its face that there was no final determination of the issue in the criminal action; that it was impossible to determine from the face of the complaint whether each defendant was being charged with the acts complained of or whether some defendants were being charged with a particular act; and that the count was duplicitous in that it attempted to allege therein a cause of action for false arrest and for malicious prosecution in violation of section 33 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 33).

On August 15, the plaintiff was given leave to file a motion for a summary judgment and the defendants filed a motion to produce memoranda, statements, books of account, documents, etc., relating to the alleged damages. On August 22, the plaintiff filed a motion to overrule the defendants' motion to strike and on August 23, he filed a motion to overrule the defendants' motion to produce and a document called "Motion to Summary Judgment." On August 27, the court heard and denied the plaintiff's motion for summary judgment and continued the defendants' motion to strike until September 26.

On September 17, the plaintiff filed a Motion To Vacate Extension, Motion To Vacate Hearing Date, and Motion To Vacate, all of which were denied on September 20; and on this date, the court set September 27 as the date for hearing on the Motion To Strike, at which time it was argued and ...


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