Fitzpatrick v. Rutter

58 Ill. App. 532, 1895 Ill. App. LEXIS 81

Opinion

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

The name of the association imported that it was a corporation.

It contracted with appellee as if it were a corporation, and can not now be heard to deny its representations. U. S. Express Co. v. Bradbury, 34 Ill. 459; Hudson v. Green Hill Cemetery Assn., 113 Ill. 613; Miami Powder Co. v. Hotchkiss, 17 Ill. App. 622.

Appellant can not in this collateral proceeding, object to the judgment obtained against the association whose receiver he is. The court which rendered judgment against the association had jurisdiction over the subject-matter and over the person of the defendant. Its judgment upon a declaration that had been filed, but nine days before the commencement of the term, was at most but error, which can not in this proceeding be argued as a reason for disregarding such judgment. Town of Lyons v. Cooledge et al., 89 Ill. 529; People v. Seelyer, 146 Ill. 189; Clark v. Kern, 146 Ill. 348.

It is true that when a.court of equity is called upon to enforce a decree rendered in another proceeding, it will refuse to do so, if, upon examination, such decree is found to be inequitable. Wadhams v. Gay, 73 Ill. 430.

We find as the court below did, that nothing appears to show that the judgment against this da facto corporation is inequitable or unjust; and appellee was, as appears, entitled to the aid of a court of equity to enable him to realize upon the judgment of the Circuit Court.

The receiver, who has appealed from the order of the court below, should act impartially for the benefit of all the creditors of this association; and unless there are facts existing not shown by the record here filed, we do not see why he should continue to endeavor to deprive appellee, a judgment creditor, of the rights to which his judgment entitled him. See High on Receivers, Sec. 202.

The decree of the Superior Court is affirmed.