APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. SWEENEY, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Julia May Raines (Raines), the removed administrator of the estate of Clarence O. Raines, her husband, who died intestate, and Maryland Casualty Company (Maryland), surety on her bond in the amount of $22,500, appeal from an order of the trial court striking Maryland's petition in lieu of final account; stating the court's own account in the amount of $19,431.27; and ordering Raines to pay over to David T. Rallo, administrator de bonis non, the sum of $19,431.27 within 14 days. They also appeal from a subsequent order denying Maryland's motion to vacate the June 28, 1979, order and requiring Maryland to pay Rallo $19,431.27. Raines and Maryland raise as issues whether or not the court properly relied upon the administrator's first inventory as evidence of the value of the estate, and whether the court may deny the surety an opportunity to file an account on behalf of Raines. For the reasons given below we reverse and remand for further proceedings with directions.
Decedent died March 19, 1973, and was also survived by seven minor children. His widow was appointed administrator on June 14, 1973. Decedent had been the sole proprietor of a small junkyard business. Raines presented a petition to continue decedent's business and for appointment of an appraiser on September 6, 1973, which alleged that she had taken possession of the business, currently operated it, and that it was not necessary to involve the estate beyond the assets of the business because it was self-maintaining and operated at a profit. The probate court authorized Raines to continue the decedent's business until further order of court; prohibited involvement of the estate beyond the assets of the business; required Raines to file monthly reports with the court and appointed an appraiser of goods and chattels.
Raines filed an inventory on October 26, 1973, which showed the assets of the estate to be personalty, valued at $19,431.27. Billings Hospital filed the only claim against the estate for $2,489.25 on December 17, 1973. The claim, set for contested hearing, was withdrawn on March 6, 1974. On May 6, 1974 the court approved Raines' surviving spouse petition for $5,000; she elected to take two trucks and a crane in payment of the award. By separate orders on that same date, the court waived the appointment of a guardian ad litem to represent decedent's minor children, and granted Raines leave to sell the goods and chattels of the estate. No monthly reports were ever filed.
On April 22, 1976, the court, on its own motion and based on its findings that Raines knowingly failed to file an accounting, ordered her to show cause why she should not be held in contempt for failing to account, and further to show cause why she should not be removed as personal representative of the estate. No personal service of the order on her was attempted; however, a copy was served on Raines by mail. The hearing on the rule to show cause was continued on a nearly monthly basis for several months, during which time Raines never appeared.
Meanwhile, on October 15, 1976, Maryland filed a petition in which it was alleged that the assets of the estate had been stolen, through no fault of the administrator and by unknown persons, and no assets were available for distribution. Maryland requested instructions as to the preparation and filing of a final account, or, in the alternative, a petition in lieu of final account. By separate order, the court ordered Raines to file a final account within 20 days and appointed Gerald W. Shea as guardian ad litem to represent the minor children at the hearing on the final account. No mention was made in this order of Maryland's petition.
By order of December 6, 1976, Raines was removed as administrator on the court's own motion; Samuel J. Betar, the public administrator was appointed administrator de bonis non; and Raines and Maryland were directed to file a final account within two weeks. Again, no mention was made in this order of Maryland's October 15, 1976, petition. Raines was not present during this proceeding. On December 16, 1976, the court gave Raines leave to present a petition to vacate the order of December 6, 1976, and the rule to show cause why Raines should not be adjudged in contempt of court was continued to January 13, 1977. Continuances were again allowed on a monthly basis until August 18, 1977.
On July 1, the trial court granted Raines leave to file her petition in lieu of final account. That order was drafted by attorneys for Maryland and the petition was actually filed by Maryland as surety. The petition stated in part that: the assets of the estate were stolen piecemeal by parties unknown; Raines expended various estate funds attempting to ascertain knowledge of the alleged thefts and to obtain insurance on the remaining assets; Raines' books and records were also stolen; T. Michael Bates, a public accountant, had prepared a summary of principal account and a statement of cash receipts and disbursements for the estate, attached as an exhibit; and neither Raines nor Maryland was able to prepare with accuracy a final account reflecting receipts and disbursements due to the aforementioned theft. Maryland prayed that the court approve the petition in lieu of final account as the final account. Among the debts and expenses shown by the public accountant were a hospital bill for $3,210; legal fees for $1,200; and accounting fees for $375. All the foregoing were shown separately from a statement of cash receipts and disbursements of the business from May 1, 1973, to June 30, 1974, offsetting each other at $36,811.97 and ending with a zero balance.
Objections to the final account were filed by the guardian ad litem, Shea, claiming mismanagement of the estate and questioning certain disbursements. An answer to objections was filed by Maryland, generally moving to strike the allegations questioning disbursements. Hearing on the petition was set for August 12, 1977, but was continued a number of times until June 28, 1979. In the meantime, Julia Raines was arrested and released on a body attachment. A new public administrator, David Rallo, was appointed on June 8, 1978. On August 17, 1978, the court allowed Rallo 28 days to file objections to the petition in lieu of final account filed by Maryland. The objections, filed September 14, 1978, alleged waste and mismanagement by Raines, and prayed that Raines be found guilty of waste, that the petition in lieu of final account be rejected, and that a judgment be entered against Maryland for the amount of the bond. Maryland denied the allegations. More continuances followed.
On June 28, 1979, counsel appeared to argue the merits of Maryland's petition in lieu of final account. Raines failed to appear in person or by counsel. The court found that Raines had filed an inventory setting forth the value of the personal property at $19,431.27 and that no accounting had been filed with the court since that inventory, as required by statute. The court ordered that the petition in lieu of final account filed by Maryland be stricken, that an account be stated on behalf of Raines in the sum of $19,431.27, and ordered Raines to turn over to Rallo $19,431.27 within 14 days of the order.
On July 25, 1979, Maryland filed a motion to vacate the order of June 28, 1979, alleging, inter alia, that the subject order did not give Raines credit for setoffs to which she was entitled. Shea filed his response to Maryland's motion on August 7, 1978, alleging that: Raines had not filed one accounting in the six elapsed years; Maryland had not been able to bring Raines before the court and substantiate the petition in the three years it had sought to do so; the petition was properly stricken since Raines, in a sense, was defaulted; and it was Maryland's obligation to assure Raines' appearance. On August 15, 1979, Rallo filed his response to Maryland's motion, alleging, among other things, that Raines never pleaded a right to credit for setoffs, and her entitlement to them is a mere conclusion. On August 31, 1979, Maryland filed an amendment to its motion to vacate. In the amendment, it was alleged that during a conference with Raines, information had been obtained with which to prepare a final account. Attached to the amendment was the putative final account, together with Raines' signed voucher showing her receipt of goods and chattels in full payment of her surviving spouse's award in the amount of $5,000; and an attorney's voucher, signed by M.C. Elden, showing direct payment of $2,489.25 to the University of Chicago, ostensibly referring to the hospital expense claim.
On September 5, 1979, Raines filed a petition to vacate the court's order of April 22, 1976, removing her as administrator. The petition also requested removal of Rallo as administrator, her own reinstatement, and the removal of Shea as guardian ad litem. Attached to the petition was a proposed first and final account. In addition, she filed a section 72 petition to vacate the court's June 28, 1979, order, which petition is still pending below. On the same day, September 5, 1979, the court denied Maryland's motion to vacate the June 28, 1979, order and directed Maryland, as surety on Raines' bond, to pay Rallo $19,431.27. The court's order did not mention Raines' proposed first and final account filed that day.
On October 3, 1979, both Raines and Maryland filed notices of appeal from both the orders of June 28, 1979, and September 5, 1979.
• 1 Before reaching the merits of this case we first address Rallo's contention that Raines' appeal should be dismissed since she did not file her notice of appeal within 30 days of entry of the order appealed from or entry of the order disposing of a timely post-trial motion, as required by Supreme Court Rule. (Ill. Rev. Stat. 1979, ch. 110A, par. 303(a).) Rallo argues that although Raines, by her October 3, 1979, notice of appeal, purports to appeal from the court's order of September 5, 1979 (denying her motion to vacate the June 28, 1979, order), that order in fact only denied Maryland's motion to vacate. Raines never filed a timely post-trial motion. Rallo contends that since Raines never filed a post-trial motion, and her notice of appeal was filed more than 30 days after the June 28, 1979, order, it was not timely filed. Rule 303(a), however, also provides that "[i]f a timely notice of appeal is filed and served by a party, any other party, within 10 days after ...