Opinion
Opinion filed September 19, 1932.
1. APPEAL AND ERROR — when proper to permit supplemental bill in interpleader suit after remand on review where fund has been distributed. Where a trustee who had been the holder of oil and gas leasehold estates for the benefit and protection of two classes of creditors, respectively "noteholders" and "bondholders," had sold such properties, and the proceeds of the sale were claimed by both classes of creditors, and, on the trustee's bill of interpleader, the circuit court rendered a decree which, in effect, was in favor of the "bondholders" and the "note-holders" prayed an appeal to the Appellate Court but failed to prosecute such appeal and the appeal was eventually dismissed by the Appellate Court with procedendo, and thereafter, but without having procured a supersedeas or a stay order of any kind, the "noteholders" prosecuted a writ of error from the Appellate Court and were successful in obtaining a reversal of the circuit court's decree and a remanding order directing a decree ordering distribution among such "noteholders," it was within the discretion of the circuit court, and was proper for such court, on the cause's reinstatement, to permit the trustee to file a supplemental bill, alleging the fact that, after the dismissal of the "noteholders' " appeal with procedendo, he had, on the "bondholders' " demand, distributed the fund in his hands among such "bondholders" and praying that the court require restitution, and to permit proofs thereunder and, in rendering its decree, to apply the Appellate Court's direction, in the order of remand, in the light of the facts and conditions developed as a result of the filing of such supplemental bill.
2. APPEAL AND ERROR — when order in interpleader suit directing repayment of fund distributed by trustee is not material departure from remanding order of reviewing court. Where, following the reversal of a cause by the Appellate Court and the latter's remand of such cause for the entry of a decree ordering distribution among a particular one of two certain classes of creditors of a fund formerly held by a trustee, the trustee, as properly permitted by the circuit court, filed a supplemental bill, alleging his previous distribution of the fund among the other of the two classes of creditors, on the distributees' demand pursuant to a former procedendo order made by the Appellate Court, and praying that restitution be required, and the testimony in support of such supplemental bill showed that no part of the fund then remained in the trustee's hands, the fact that the circuit court thereafter ordered the recipients of the fund to make repayment to the clerk of the court, instead of to the trustee, did not constitute such a departure from the Appellate Court's remanding order, directing a decree ordering the trustee to distribute the fund among the creditors whom the Appellate Court held were entitled thereto, as to invalidate the circuit court's decree.
3. APPEAL AND ERROR — decree that fund be paid out in shares of one-fourteenth each not substantial variance from order of reviewing court for pro rata distribution. Where, in remanding a cause on the latter's reversal, the Appellate Court directed a decree ordering the distribution of a certain fund pro rata among the holders of notes aggregating $14,000, the circuit court's subsequent order that the fund be paid out in shares of one-fourteenth each was the equivalent of an order for a pro rata division and was not a substantial variance from the Appellate Court's remanding order.
4. APPEAL AND ERROR — when decree ordering distribution of fund not materially variant from remanding order for omission of provision relating to balance. Although the remanding order of the Appellate Court directed a decree not only for the distribution of a certain fund in full payment of the claims of a particular class of creditors but also for the pro rata payment to another class of creditors of any balance remaining, this latter provision's omission from the circuit court's subsequent decree did not create a material variance between such decree and the remanding order, where the evidence showed that the fund was not sufficient to pay the creditors first entitled to payment, the circuit court not being required to include in its decree a provision which would be useless.
5. APPEAL AND ERROR — when appellees cannot assign errors based on execution of original decree in interval between dismissal of their appeal and prosecution of writ of error. Appellees, who failed to prosecute their one-time appeal to the Appellate Court, with the result that such appeal was eventually dismissed by such court with procedendo, and who failed also to procure the supersedeas which they were advised by letter from one of the justices of the Appellate Court they would have to obtain if they desired to stay proceedings under the decree from which they had appealed, but who thereafter, on writ of error from the Appellate Court, procured a reversal of such decree and also a remanding order directing the decree which the circuit court should enter, could not, on their adversaries' subsequent appeal from the decree actually entered by the circuit court pursuant to the remanding order, assign cross errors based on the execution of the original decree in the interval between the dismissal of their appeal and their prosecution of the writ of error.
Appeal by defendants from the Circuit Court of Lawrence county; the Hon. CHARLES H. MILLER, Judge, presiding. Heard in this court at the October term, 1931. Affirmed. Opinion filed September 19, 1932.
SHAW HUFFMAN, for appellants.
LINDERMAN, RAMSDELL KING and SUMNER LEWIS, for appellees.
FRED W. GEE, for S. J. Gee, trustee.
S. J. Gee, trustee, filed a bill of interpleader in the circuit court of Lawrence county against two sets of defendants. He had been the holder of certain oil and gas leasehold estates as trustee for the benefit and protection of two classes of creditors. One set of creditors held several notes, secured by trust deed, which was a first lien on the premises and this class of creditors is designated in this opinion as "noteholders."
The other set of creditors held a number of bonds secured by another trust indenture, which was in effect a second mortgage, and this class of creditors is designated herein as "bondholders."
The trustee had sold these properties and had in his hands for distribution the sum of $17,024.87, which sum was claimed by both the noteholders and the bondholders. The bill of interpleader was brought by the trustee to determine the rights of the conflicting parties in the fund remaining in his hands.
There were $14,000 in unpaid notes bearing interest since July 15, 1922, and $18,500 in unpaid bonds, so that in either case there was not enough funds to pay either class of claimants in full. On August 21, 1928, the circuit court of Lawrence county rendered a decree which in effect was in favor of the "bondholders" and denied any participation in the fund on the part of the "noteholders." The "noteholders" prayed an appeal from this decree but failed to prosecute the same and it was dismissed by this court on December 24, 1928, with procedendo. Several months later the so-called "noteholders" prosecuted a writ of error to this court without procuring a supersedeas or stay order of any kind, and were successful in securing a reversal of the decree of the circuit court entered on August 21, 1928. In effect, this court, by its order, directed that the "noteholders" as a class were entitled to the fund and that the "bondholders" were not entitled to participate in the same. The remanding order directed the circuit court to enter a decree ordering the trustee, Gee, to pay certain costs and compensation to himself as trustee, "and that the balance of said fund be paid to the holders of the five notes with interest in order of their maturity, less any amount shown to be paid on any of such notes, provided that if such balance is not sufficient to pay all of said notes with interest, then that he distribute said balance pro rata among the owners of said notes; that if a balance remains in his hands after paying said notes in order of their maturity, as aforesaid, that he distribute such latter balance among the bondholders pro rata."
When the cause was reinstated in the circuit court and before any action was taken to carry out the remanding order, the trustee, S. J. Gee, asked for leave to file a supplemental bill for the purpose of calling the attention of the court to matters which had transpired since the entry of the original decree on August 21, 1928, and praying for additional relief. The material allegations of the supplemental bill set forth that after the appeal had been prayed for from the original decree by the "noteholders" and after the dismissal of the same with procedendo by this court on December 24, 1928, the "bondholders," including the present appellants, demanded that the trustee carry out the decree of the circuit court; that the trustee had done so and disbursed the entire fund and paid it into the hands of the "bondholders," all of whom were parties to the suit; that the court should require each of the persons who had benefited by the erroneous decree to make restitution in order that the parties rightfully entitled to the fund might receive the benefits therefrom. Appellants and appellees all objected to the filing of the supplemental bill, but the same were overruled and the supplemental bill filed. Proofs were taken and a new decree entered from which appellants have prosecuted this appeal and cross errors have been assigned by appellees.
The new decree which appellants now seek to reverse ordered the appellants to make restitution of the amounts which they had erroneously received and to pay the same in to the hands of the clerk of the circuit court; that the clerk of the circuit court should enter into bond conditioned that he would hold the money until such time as it might be paid over to the parties to whom this court had ordered it paid. The proofs sustained the allegations of the supplemental bill.
Appellants urge that the whole procedure taken in this case, after the mandate of this court was filed in the circuit court, has been so widely at variance with the specific directions of this court that the decree as it now stands should be reversed. They insist that the court has erred in granting the trustee leave to file the supplemental bill, to take additional evidence and to enter a new and original decree. The authorities cited by counsel, Trustees of Schools v. Hoyt, 318 Ill. 60, and Smith v. Dugger, 318 Ill. 215, hold that where a cause is reversed and remanded with specific directions as to what decree shall be entered by the trial court, it is the duty of that court to follow such directions and the trial court cannot lawfully do otherwise. In the Hoyt case the cause was remanded with directions to dismiss a petition for condemnation, the court having found that the statutory conditions authorizing the exercise of eminent domain did not exist. On the reinstatement of the case the petitioners made a motion for leave to amend the petition and for another hearing, but the court held the only judgment the lower court had power to enter was an order dismissing the petition.
In the Dugger case which was a bill for specific performance, after the cause was remanded with directions to grant the relief prayed in the bill and the cause reinstated, the lower court permitted the filing of a supplemental answer, alleging the existence of various judgments against one of the vendors which were liens on the land prior to the first decree, also other matters that existed during the pendency of the suit in the lower court. The Supreme Court held it was too late to raise those questions after final judgment in that court.
In neither of these cases did the amended petition or the supplemental answer set up matters that had occurred since the entry of the original judgment or decree. In the present case, the supplemental bill did not raise any question that had been passed on by the circuit or the Appellate Court or any question that could have been raised on that hearing. It did not submit nor ask to relitigate any of the issues determined on the hearing of the original bill. It called the attention of the court to matters only that had happened since the entry of the original decree and we believe it was within the discretion of the court and that he properly permitted the filing of the supplemental bill. Green v. City of Springfield, 130 Ill. 515; West v. Douglas, 145 Ill. 164; Dinsmoor v. Rowse, 211 Ill. 317.
Appellants further insist that the new decree is entirely different in the essential elements from the decree specified by this court. First, because it orders appellants to pay the various sums of money to the clerk of the circuit court instead of to S. J. Gee, trustee, and because it is ordered that the money be paid out by the clerk in shares of one-fourteenth each instead of pro rata to the "noteholders." While we believe it would have been better to have appointed the trustee to have collected in and disbursed these funds, it was apparent from the testimony that he had no part of the fund remaining in his hands and we believe that this was not such a departure as to invalidate the decree. The division into fourteenths was equivalent to dividing pro rata among the "noteholders" and is not a substantial variance.
Appellants contend that the remanding order provided that the balance, if any, after paying off the "noteholders" in full should be pro rated to the "bondholders" and that because this provision was not inserted in the new decree, it was a material variance from the directions of this court. The evidence discloses that the fund was not sufficient to pay the claims of the "noteholders" and therefore the circuit court was not required to provide for useless terms in its decree.
The appellees who are "noteholders" assign cross errors and complain that the court erred in not ordering the trustee, S. J. Gee, to pay them the amount found to be due upon the notes, and also in relieving the trustee from liability for the said amount found to be due them.
The record discloses that the appeal of the appellees was dismissed by this court on December 24, 1928; that they had been advised by letter from Justice Edward Barry of this court that they must secure a supersedeas if they desired to stay proceedings under the decree they were complaining about. Being fully advised, they neglected to protect their interests and cannot now complain because in the interim between the dismissal of their appeal with procedendo and the prosecuting of a writ of error, the trustee proceeded to distribute the fund in his hands to the "bondholders" in obedience to the terms of the decree of the circuit court, entered on August 21, 1928, which at that time was in full force and effect.
The decree in this case carries out substantially the orders and directions of this court in its opinion of February 12, 1930, and should be affirmed.
Affirmed.