{ "id": 2967612, "name": "Robert S. Iles and Robert D. Martin, Appellees, v. Julius Heidenreich et al., on appeal of Ida M. Heidenreich, Appellant", "name_abbreviation": "Iles v. Heidenreich", "decision_date": "1916-11-14", "docket_number": "Gen. No. 21,708", "first_page": "619", "last_page": "627", "citations": [ { "type": "official", "cite": "201 Ill. App. 619" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "250 Ill. 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3431523 ], "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill/250/0312-01" ] }, { "cite": "262 Ill. 36", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4752090 ], "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill/262/0036-01" ] }, { "cite": "134 Ill. 557", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5437853 ], "opinion_index": 0, "case_paths": [ "/ill/134/0557-01" ] }, { "cite": "181 Ill. 350", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5549728 ], "opinion_index": 0, "case_paths": [ "/ill/181/0350-01" ] }, { "cite": "106 Ill. 425", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2781853 ], "opinion_index": 0, "case_paths": [ "/ill/106/0425-01" ] }, { "cite": "170 Ill. 18", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3182346 ], "opinion_index": 0, "case_paths": [ "/ill/170/0018-01" ] }, { "cite": "197 Ill. 117", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 844054 ], "opinion_index": 0, "case_paths": [ "/ill/197/0117-01" ] }, { "cite": "37 Ill. 306", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5292190 ], "opinion_index": 0, "case_paths": [ "/ill/37/0306-01" ] }, { "cite": "25 Ill. 107", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 443535 ], "opinion_index": 0, "case_paths": [ "/ill/25/0107-01" ] }, { "cite": "255 Ill. 604", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4701953 ], "opinion_index": 0, "case_paths": [ "/ill/255/0604-01" ] } ], "analysis": { "cardinality": 650, "char_count": 16537, "ocr_confidence": 0.532, "pagerank": { "raw": 2.755712791342023e-07, "percentile": 0.8331128571588536 }, "sha256": "e12a63f985216c00f5fa81ab06e1b68e9a2d1ee7e9301c7d0eafb8d0218a5c3e", "simhash": "1:12bbe2b214a6de98", "word_count": 2798 }, "last_updated": "2023-07-14T15:52:04.845486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Robert S. Iles and Robert D. Martin, Appellees, v. Julius Heidenreich et al., on appeal of Ida M. Heidenreich, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Barnes\ndelivered the opinion of the court.\nAppellees filed a creditor\u2019s hill, afterwards amended, based on a judgment for $1,500 rendered against Julius Heidenreicli in the Municipal Court of Chicago. In addition to the usual allegations as to the issuance of an execution and a return nulla bona and the concealment and transfer of property that ought to be applied to the payment of the judgment, it alleged that while the action in which the judgment was rendered was pending said Heidenreich received and assigned to his daughter Ida (appellant), without consideration and to defraud complainants and other creditors, a master\u2019s certificate of sale in a foreclosure proceeding, which was redeemed, and that Michael Zimmer, the sheriff of Cook county, still held $3,000 of the redemption money out of which the bill sought satisfaction of such judgment.\nAfter withdrawing their demurrers to said amended bill, the Heidenreichs obtained leave to plead double and filed pleas thereto which were overruled and by which they elected to stand. The decree on said bill taken as confessed against them set aside said certificate as fraudulent and void against complainants, the appellees. From that decree Ida Heidenreich prosecutes this appeal.\nThe pleas went to the jurisdiction of the Municipal Court of Chicago to render the judgment on which the creditor\u2019s bill was based, and one of appellant\u2019s pleas averred that a garnishment proceeding brought against Zimmer in the Municipal Court before the filing of the bill herein, to reach the fund in his hands, was res adjudicata of the question of the validity of the transfer and assignment of said certificate of sale.\nThe averments of the latter plea were clearly insufficient. After stating the facts pertaining to the institution of such garnishment proceeding by complainants and alleging that their traverse to the garnishee\u2019s answer raised an issue as to the character and effect of such transfer and the ownership of such moneys in the garnishee\u2019s hands, the plea averred that \u201csaid cause was called for trial and said plaintiffs were unable to prove their allegations and said garnishment suit was dismissed on motion of garnishee at plaintiffs\u2019 costs and the garnishee discfiarged, \u201d and averred as a conclusion therefrom that the matters and things respecting said transfer and assignment were thus adversely decided against complainants and became res adjudicata. It is enough to say on this point that the quoted averment as to the disposition of the garnishment proceeding does not show a trial or adjudication of the case on its merits but what appears to be simply a dismissal thereof for want of prosecution. A mere dismissal of a suit is,manifestly not an adjudication of the matters at issue, and the plea in that respect was properly overruled.\nThe plea as to want of jurisdiction of the Municipal Court to render the judgment on which the creditor\u2019s bill was based, is predicated on paragraph 4, section 28 of the Municipal Court Act (J. & A. \u00b6 3340) and upon the averments that said Julius Heidenreich was sole defendant to the suit in which such judgment was rendered and was not a resident of Chicago, and was served with summons outside of its territorial limits, namely, in the Village of Morgan Park, where he then and ever since has resided, and that the official return of service as made in Chicago was due to the officer\u2019s mistaken belief that said village had been annexed to the City of Chicago.\nParagraph 4, section 28 of said Act relates to the commencement and prosecution of suits of the \u201cfirst class,\u201d to which the one so brought against Julius Heidenreich belonged. The paragraph so far as pertinent reads:\n\u201cFourth: No suit shall be commenced in the Municipal Court unless the defendant, if there be but one defendant, resides or is found within the City of Chicago. \u2019 \u2019\nThe point made is that under the alleged circumstances said Julius Heidenreich was not \u201cfound\u201d within the City of Chicago when the suit was \u201ccommenced. \u2019 \u2019\nAllegations of the bill not denied are that in said suit said Heidenreich filed his appearance and written pleading, and appeared and went to trial on the issues. The sufficiency of the plea, therefore, depends upon its failure to meet such allegations. For, notwithstanding Heidenreich\u2019s nonresidence and an apparently void service of summons on him, the question is whether such state of facts undenied by the plea did not confer the jurisdiction attacked.\nIt is contended by appellant that while the Municipal Court had jurisdiction to hear and adjudicate upon a contract case involving more than $1,000, like the one brought therein against Julius Heidenreich, yet in view of the quoted language of the Municipal Court Act it did not have jurisdiction of that particular case unless at the very time it was commenced said Heidenreich resided or was \u201cfound\u201d in the limits of Chicago; in brief, that residence or being \u201cfound\u201d when the suit is commenced relates not merely to the jurisdiction of the person but to the subject-matter of the particular action. We do not so interpret the statute, and the eases cited by appellant are not pertinent. We think the language of the act so quoted relates only to acquiring jurisdiction of the person, which is conferred even on a nonresident if \u201cfound\u201d within the limits of Chicago, beyond which of course the process of that court cannot go. (Wilcox v. Conklin, 255 Ill. 604.) And even though we confine the term \u201cfound\u201d to the method of acquiring jurisdiction by service of process, still service by process is unnecessary when the party appears, whether in person or by attorney (Abbott v. Semple, 25 Ill. 107; Dunning v. Dunning, 37 Ill. 306) and entry of appearance without objection, or pleading to the merits after an adverse ruling upon a motion to quash the summons, waives defects of process and service, and confers jurisdiction of the person. (Franklin Life Ins., Co. v. Hickson, 197 Ill. 117; Martin v. Martin, 170 Ill. 18; Mix v. People, 106 Ill. 425; Siegel v. A. H. Andreivs & Co., 181 Ill. 350.) In other words when residence is not an indispensable element of the court\u2019s jurisdiction and jurisdiction of the person may be acquired by due service of process, the method by which the person is brought before the court does not pertain to the subject-matter of the court\u2019s jurisdiction, if the usual method of process and service may both be waived.\nAppellant finds support for her theory in the mandatory language \u201cno suit shall be commenced\u201d unless the defendant resides or \u201cis found\u201d etc. We do not understand appellant to argue that being \u201cfound\u201d must be contemporaneous with \u201ccommencement\u201d of the suit. If so, it could not relate to service of process and would require a definition of the word \u201cfound\u201d not only unusual in statutes of this character, but impractical, if not meaningless. If the court may acquire jurisdiction of one when found in its territorial jurisdiction by service of process, which must of necessity follow the commencement of the suit, then he may be found by appearing and waiving process. Otherwise the result would be the anomaly that a first-class case of the Municipal Court would be the only case in that court or any other we know of wherein a nonresident defendant could not confer jurisdiction of his person by consent. Hence, we do not think that the circumstances present a case where there was a want of jurisdiction of the subject-matter of the action, but rather where there, was jurisdiction of the subject-matter and where a defective service of process was waived and jurisdiction of the person conferred by appearance and pleading to the action. Hence the pleas were properly overruled.\nBut appellant urges that the allegations of the Mill do not support the decree as to fraud in such transfer,' and that it should for that reason have been dismissed.' For appellees\u2019 contention that appellant is estopped from raising the question because she withdrew her demurrer to the bill, we know of no authority. Even a demurrer does not admit fraud when the facts alleged do not necessarily amount to fraud (Sterling Gas. Co. v. Higby, 134 Ill. 557); and it is familiar law that \u201cmere conclusions of the pleader without averments as to facts will not support an allegation of fraud.\u201d (Harrigan v. County of Peoria, 262 Ill. 36, 45.)\nThe particular finding claimed to be unwarranted is that the assignment of the master\u2019s certificate was made with the intent and purpose to defeat and prevent recovery by complainants in their action at law and is fraudulent and void as to them.\nThe principal allegations of the bill relied on to support this conclusion in addition to those pertaining to the obtaining of judgment, the issuance of execution and the return nulla tona, are to the effect that the assignment from Julius Heidenreich to his daughter was without consideration, that she was dependent upon her father for support and wholly without means to pay a valuable consideration therefor; that at the date of the judgment and when the bill was filed said Heidenreich was the beneficial owner of money amounting to $86,000 and that at the latter date he still had the same in moneys, securities or other property and kept them concealed for the purpose of preventing satisfaction of such judgment, and that if he has made any transfer or disposition thereof it was color-able and made with such purpose and would so appear if he was required to answer interrogatories in the bill, etc.\nThere are no other allegations respecting fraud that are not mere conclusions. The bill does not allege insolvency of the judgment debtor at any time, or that he has not retained sufficient property to pay his indebtedness. In fact the allegations that he still has $86,000, or the avails thereof, though concealed, would be construed most strongly against the pleader on that subject. Hence, the finding complained of rests mainly on two only of the three elements necessary to impeach such an assignment, viz.: that it constituted a voluntary gift and that when made there was an existing indebtedness of the donor. But the bill lacks any allegation supplying the third element, that the donor did not retain sufficient property to pay Ms indebtedness. (State Bank of Clinton v. Barnett, 250 Ill. 312, 317.) In the case cited it was held that to constitute presumptive or legal fraud in case of a voluntary gift it is necessary both to aver and prove insolvency at the time of the gift; that the return of the execution nulla bona establishes prima facie insolvency only at the time of its return. There as here no such averment was made, and the decree was reversed with directions to dismiss the bill.\nNor is the failure to allege insolvency at the time the gift was made supplied by the allegation of concealment of such moneys or the avails thereof. For if such conceaMient of itself constitutes fraud, still to render such assignment fraudulent, there must by analogy have been such concealment at the time of the assignment to render the latter fraudulent. In the absence of any averments of facts existing at the time of the gift that would impeach such assignment, the bill does not support the decree setting it aside as fraudulent.\nBut we are of the opinion that the bill should not be dismissed and that complainants would still have a right to proceed under the bill for a discovery of property alleged to be concealed. Accordingly the decree will be reversed and the cause remanded for such action as is consistent herewith.\njReversed and remanded.", "type": "majority", "author": "Mr. Presiding Justice Barnes" } ], "attorneys": [ "Farlin H. Ball and G. A. Buresh, for appellant.", "Robert S. Iles and Robert D. Martin, pro se." ], "corrections": "", "head_matter": "Robert S. Iles and Robert D. Martin, Appellees, v. Julius Heidenreich et al., on appeal of Ida M. Heidenreich, Appellant.\nGen. No. 21,708.\n1. Judgment, \u00a7 419 \u2014when dismissal of action is not bar to subsequent suit. On a creditor\u2019s bill alleging that defendant had transferred a master\u2019s certificate .of sale at a foreclosure sale, the proceeds of which, after redemption, were alleged to be in the hands of the sheriff, a plea that the validity of the transfer attacked had been adjudicated by garnishment proceedings commenced by complainants at law to reach such funds is insufficient, and is properly overruled where it appears from the plea that the garnishment proceedings were dismissed for want of prosecution, since such a dismissal is not a trial or adjudication of the matters at issue.\n2. Municipal Court of Chicago, \u00a7 7*\u2014what is nature of act relative to commencement of first-class action. The Municipal Court Act, par. 4, sec. 28 (J. & A. \u00b6 3340), providing that no first-class action shall be commenced in such court unless the defendant, if there be but one, \u201cresides or is found\u201d within the city, relates only to acquiring jurisdiction of the person, and not to that of the subject-matter of the action.\n3. Municipal Court of Chicago, \u00a7 8*\u2014how jurisdiction of nonresident is acquired. The Municipal Court Act, par. 4, sec. 28 (J. & A. \u00b6 3340), providing that no first-class action shall be commenced in such court unless defendant, if there be but one, \u201cresides or is found\u201d within the city, confers jurisdiction of a nonresident, if \u201cfound\u201d within the city, within the meaning of the act.\n4. Appearance, \u00a7 16*\u2014when service of process is unnecessary. Service of process on a defendant is unnecessary where the party appears either in person or by attorney, and jurisdiction of the person is conferred and defects of process and service waived by an appearance without objection, or by pleading to the merits after an adverse ruling on a motion to quash the summons.\n5. Municipal Court of Chicago, \u00a7 8*\u2014how defendant may te \u201cfound\" within City of Chicago. A defendant may be \u201cfound\u201d within the City of Chicago,, within the meaning of the Municipal Court Act, par. 4, sec. 28 (J. & A. \u00b6 3340), relating to first-class cases, by appearing and waiving process.\n6. Fraud, \u00a7 85*\u2014what is effect of withdrawal of demurrer to till. A defendant who demurs to a bill charging fraud is not, by withdrawing the demurrer, estopped from later raising the question of fraud, since the demurrer does not admit fraud where the facts alleged do not necessarily amount to fraud.\n7. Fraudulent conveyances, \u00a7 7*\u2014when transfer may be impeached as without consideration. In order to impeach a transfer without consideration, it must appear (1) that it was a voluntary gift; (2) that when made there was an existing indebtedness of the donor; and (3) that the donor did not retain sufficient property to pay his indebtedness.\n8. Fraudulent conveyances, \u00a7 223*\u2014what must be shown to establish fraudulent voluntary gift. In order to constitute presumptive or legal fraud in the case of a voluntary gift, it is necessary both to aver and prove the insolvency of the donor at the time of the gift, and the return of an execution nulla tona establishes prima facie insolvency only at the time of its return.\n9. Creditors\u2019 suit, \u00a7 48 \u2014when judgment creditor\u2019s hill to set aside voluntary gift is insufficient. On a creditor\u2019s bill to set aside a voluntary gift by defendant, alleged to be in fraud of complainants, judgment creditors of defendant, the failure of the bill to allege the insolvency of defendant at the time of making the gift is not supplied by an allegation of concealment of other money or its avails, since such allegation is to be construed most strongly against the pleader, and since if such concealment constitutes fraud, it' must have been done at the time of the gift, which was not alleged.\n10. Creditors\u2019 suit, \u00a7 57*\u2014when judgment creditor\u2019s hill to set aside voluntary gift should not he dismissed. The fact that a creditor\u2019s bill seeking to set aside a voluntary gift alleged to be in fraud of creditors is insufficient owing to failure to allege the insolvency of the donor at the time of the gift is not ground for dismissing the bill, where the bill alleges a concealment of his property by defendant, since complainants have still a right to proceed under the bill for a discovery of the property alleged to be concealed.\nAppeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.\nReversed and remanded.\nOpinion filed November 14, 1916.\nFarlin H. Ball and G. A. Buresh, for appellant.\nRobert S. Iles and Robert D. Martin, pro se.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic said section number." }, "file_name": "0619-01", "first_page_order": 661, "last_page_order": 669 }