{ "id": 3341854, "name": "In re Petition of Frank B. Buszin, Appellant, v. Frank Bestmann, Appellee", "name_abbreviation": "Buszin v. Bestmann", "decision_date": "1927-10-19", "docket_number": "Gen. No. 31,536", "first_page": "166", "last_page": "169", "citations": [ { "type": "official", "cite": "246 Ill. App. 166" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "237 Ill. App. 537", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5507059 ], "opinion_index": 0, "case_paths": [ "/ill-app/237/0537-01" ] }, { "cite": "20 Ill. App. 401", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4904806 ], "opinion_index": 0, "case_paths": [ "/ill-app/20/0401-01" ] }, { "cite": "175 Ill. App. 653", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2750842 ], "opinion_index": 0, "case_paths": [ "/ill-app/175/0653-01" ] }, { "cite": "323 Ill. 221", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5174910 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/323/0221-01" ] }, { "cite": "292 Ill. 206", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4981073 ], "weight": 3, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill/292/0206-01" ] } ], "analysis": { "cardinality": 332, "char_count": 5481, "ocr_confidence": 0.506, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09372805132654452 }, "sha256": "9398b912883d01f534d10a416b779d5f15e1809915e174ce803570948db9ca56", "simhash": "1:c7f789e67c7ae88f", "word_count": 934 }, "last_updated": "2023-07-14T21:56:12.897381+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Petition of Frank B. Buszin, Appellant, v. Frank Bestmann, Appellee." ], "opinions": [ { "text": "Mr. Justice Holdom\ndelivered the opinion of the court.\nThe appellant, Frank B. Buszin, arrested upon a writ of capias ad satisfaciendum from the circuit court of Cook county on a judgment for $1,293.15, filed a petition for a discharge from imprisonment in the county court of Cook county under the Insolvent Debtors\u2019 Act, Cahill\u2019s St. ch. 72. The cause was heard by the court and the court held as a matter of law that a transcript of proceedings in the circuit court stated a case where malice was the gist of the action and dismissed appellant\u2019s petition and remanded him to the custody of the sheriff of Cook county. Appellant seeks by this appeal to reverse the order of the county court.\nThe declaration in the circuit court avers that a certain note and mortgage were fictitious and that appellant \u201cknowingly, fraudulently and maliciously sold and delivered said alleged principal note of Twelve Hundred Dollars ($1,200) to plaintiff, in order to obtain said sum and then and there fraudulently and maliciously appropriated and converted said Twelve Hundred Dollars ($1,200) to his own use for the purpose then and there of depriving plaintiff of said sum.\u201d\nAppellant allowed a judgment to go against him in the circuit court by default. It appears that the interest upon said $1,200 was paid until the second day of January, 1924. The cessation of the payment of interest seems to have put the appellee upon inquiry as to the genuineness of the transaction, and that he discovered from his investigation that the maker of the note was not, and never had been, the owner of the real estate mortgaged by the maker of the notes to secure their payment. The verdict of the jury on the trial of the case in the circuit court by default was, \u201cWe,\u2019the jury find the defendant guilty of the wrongful, fraudulent and malicious conversion and appropriation of the money of the plaintiff to his own use and assess plaintiff \u2019s .damages at twelve hundred seventy-eight and No/100ths Dollars.\u201d\nAppellant contends that malice was not the gist of the action.\nIt is clear that appellee confided in the representations of appellant as to the notes being secured by a valid mortgage on real estate. This representation was false and is not denied. Further the judgment of the circuit court is res adjudicata as between the parties. The jury found that the conduct of appellant was malicious, and until the judgment of the circuit court is reversed, it is binding upon all the parties to it. This court does not review the circuit court judgment, neither was it the duty of the county court on hearing of appellant\u2019s petition for his release from imprisonment to sit as a court of review upon the judgment of the circuit court. That judgment binds the parties in the county court and is also binding on this court and will so remain until in some direct proceeding that judgment is challenged in a court of review and reversed. The very fact that appellee made no inquiries regarding the title of the mortgaged property made to secure the notes is cogent proof that appellee confided in appellant\u2019s representations in relation thereto. Seney v. Knight, 292 Ill. 206, is similar on fact and law to the case at bar,_ wherein the defendant was charged with wilfully, maliciously, tortiously and fraudulently converting certain bonds, and the Supreme Court held that malice was the gist of that action, and that refusal to discharge the defendant under the Insolvent Debtors\u2019 Act was without error. To a similar purport is Greener v. Brown, 323 Ill. 221.\nIt is true, as contended by appellee, that appellant was not found guilty in the circuit court of appropriating and converting the sum of $1,278, but the jury found that appellant was guilty of the wrongful, fraudulent and malicious conversion and appropriation of the money of the plaintiff, which was $1,200, and then assessed the damages at $1,278, which was the amount of which appellee was defrauded plus accrued interest.\nIn Greener v. Brown, supra, the court said: \u201cThe sole question controverted in this court, under the pleadings, is whether malice was the gist of the action. The jury in the circuit court found plaintiff in error was guilty of conversion. The action was one in tort based on fraudulent conversion. Malice, as that term is used in cases of this character, does not necessarily mean hatred or ill-will, hut pertains to wrongs which are inflicted with an evil intent, design or purpose. Such malice may he shown by showing that the guilty party was actuated by dishonest motives with intent to perpetrate an injury. (Seney v. Knight, 292 Ill. 206; Kitson v. Farwell, 132 id. 327; First Nat. Bk. of Flora v. Burkett, 101 id. 391.) \u201d See also In re Petition of Sankstone v. People, 175 Ill. App. 653; Mahler v. Sinsheimer, 20 Ill. App. 401; In re Petition of Brown v. People, 237 Ill. App. 537.\nWhen appellant by false representations obtained from appellee the $1,200, he was in law actuated by malice.\nThe county court having correctly held that the gist of the action in the circuit court was malice, the judgment is affirmed.\nJudgment affirmed.\nTaylor, P.J., and Wilson, J., concur.", "type": "majority", "author": "Mr. Justice Holdom" } ], "attorneys": [ "Rathje, Wesemann, Hinckley & Barnard, for appellant.", "Benson, Fitch & Heinemann and George W. Ludden, for appellee." ], "corrections": "", "head_matter": "In re Petition of Frank B. Buszin, Appellant, v. Frank Bestmann, Appellee.\nGen. No. 31,536.\nHeard in the third division of this court for the first district at the October term, 1926.\nOpinion filed October 19, 1927.\nRathje, Wesemann, Hinckley & Barnard, for appellant.\nBenson, Fitch & Heinemann and George W. Ludden, for appellee." }, "file_name": "0166-01", "first_page_order": 226, "last_page_order": 229 }