Schipersky v. Gartner, 202 Ill. App. 337 (1916)

Dec. 30, 1916 · Illinois Appellate Court · Gen. No. 21,857

202 Ill. App. 337

Bernhard Schipersky and Roman Schipersky, Appellants, v. Gustav Gartner et al., Appellees.

Gen. No. 21,857.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Affirmed.

Opinion filed December 30, 1916.

Statement of the Case.

Action to foreclose a mortgage by Bernhard Schipersky and Roman Schipersky, complainants, against Gutav Gartner and others, defendants, in which one claiming title to the notes secured by the mortgage filed an intervening petition. From a decree dismissing the bill and granting other relief, the complainants appeal.

Walter Truc and James S. Wright, for appellants.

William McKinley, for appellees; C. W. Armstrong, of counsel.

Edward J. Green, for appellee Aronowski.

Abstract of the Decision.

1. Appeal and ebbob, -§ 1399 ^* —when master’s findings of fact will not he disturbed on appeal. In an equity suit where the testimony is conflicting and contradictory, requiring the master to pass on the credibility of witnesses, his finding of facts will not be reversed unless clearly and palpably .contrary to the weight of the evidence.

2. Mobtgages, § 503*—when evidence justifies dismissal of hill to foreclose. On a bill to foreclose a mortgage by assignees of notes secured thereby, who elected to foreclose in accordance with the terms of the mortgage on nonpayment of interest due on one of the notes, such notes having been assigned to the complainants by the deceased mortgagee in her lifetime, an intervening petition having been filed by the husband of the mortgagee, claiming to be the legal owner of the notes, where the evidence satisfactorily showed that the money loaned on the mortgage was that of the intervening petitioner, a decree dismissing the bill for want of equity, canceling the assignments and transfer of the notes to the complainant, declaring the intervening petitioner the legal and equitable owner of the notes and ordering the complainant to transfer them to him, held, proper.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section «number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Appeal and ebbor, § 1488 ^* —when admission of improper evidence 5y master not ground for reversal. In an equity suit, held that the defendant’s objection that improper evidence was heard by the master need not he considered where the defendant’s objection to such evidence was sustained by the master and he reported that he had not considered it in reaching his conclusions and there was evidence apart therefrom sufficient to warrant his conclusions and findings of fact.