Martin v. Cole, 63 Ill. App. 452 (1896)

April 13, 1896 · Illinois Appellate Court

63 Ill. App. 452

Anna L. Martin et al. v. Sarah A. Cole et al.

1. Error and Appeal—From Final Orders.—A writ of error does not lie until there is a final decree as to the matters in controversy.

In Equity.—Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1896.

Writ dismissed.

Opinion filed April 13, 1896.

Statement of the Case.

This was a bill by Sarah A. Cole, widow of Geo. W. Cole, making her two children and The Bankers & Merchants’ Association parties defendant, praying for a receiver to conduct the business of the corporation. The bill alleges that the defendant is a corporation, a collection agency; that Geo. W. Cole in his lifetime was possessed of all the stock of the corporation, and was its sole manager; there was a large amount of business on hand demanding immediate attention; a large amount of money in bank which the bank refused to pay out because there was no one authorized to receive it; that Geo. W. Cole was killed by the cable cars, October 29, 1895, and complainant and defendants Cole are his sole heirs and representatives, and have no experience in the business, and pray that a receiver be appointed to take charge of the business.

O. H. Smith was appointed receiver on an ex parte order, November 4th, and took charge of the business November 5 th, finding Anna L. Martin and Henry F. Martin in possession and running the business as stockholders and officers of the corporation.

Anna L. Martin and Henry F. Martin came in and filed their answer, setting up their ownership of the stock of the corporation, and on bill and answer the matter was referred to a master in chancery.

The decree of the court, to reverse which this writ of error is prosecuted, after making various findings, is as follows :

“ The court doth further find that after the death of the said George W. Cole, the said Bankers & Merchants’ Association ceased to do the business for which it was organized, within the terms of section 25 of the statute entitled “ Corporations,” and that it is for the best intérests of the creditors that the receiver heretofore appointed be continued in said receivership.

It is further ordered, however, that said receiver do not proceed to wind up or dissolve said Bankers & Merchants’ Association, but shall carry on the same as heretofore, until such time as the contest over the alleged will of George W. Cole, deceased, and the rights of the parties under the same, are definitely determined.

Samuel Richolson and Marshall Drake, attorneys for plaintiffs in error.

Frank W. Blair, attorney for defendants in error.

Mr. Justice Waterman

delivered the opinion of the Court.

Flo final decree as to the matters and things in controversy has been made, but "merely that the receiver for an indefinite time continue to carry on the business of the Bankers & Merchants’ Association. The only final order was that Anna and Henry Martin pay the costs of the proceedings.

Such order was premature; it is therefore reversed.

As to all other matters, findings and orders of the Circuit Court, the writ of error is dismissed.

Order as to costs reversed; as to all other matters, writ of error dismissed.