DEWES v. GRINDLE, 312 Ill. App. 180 (1941)

37 N.E.2d 932

Gen. No. 41,650. (Abstract of Decision.)Appellate Court of Illinois, First District.
Opinion filed November 28, 1941 Rehearing denied December 10, 1941

BANKRUPTCY, § 72[*] — claim arising from fiduciary relationship as not discharged. Where defendants had in proceedings in nature of “audita querela” sought to satisfy judgment by operation of law and stay further judgment creditor proceedings brought by plaintiff under chancery decree and judgment obtained in cause arising out of fiduciary relationship, defendants’ defense that such decree or judgment included clause by stipulation of parties, that “capias ad satisfaciendum” could not be issued against defendants named therein, and consequently by such inclusion of clause decree or judgment in effect amounted to accord and satisfaction, so that such decree or judgment was therefore, but ordinary money judgment or decree, which was dischargeable in subsequent bankruptcy proceedings brought by defendants, in which discharge was had by them, was without merit and trial court’s action in dismissing defendants proceedings was proper, as plaintiff had right in proper case to waive body execution in judgment or decree obtained against defendants

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if she deemed fit, and such subsequent waiver did not change character of decree or judgment so entered, which was one not dischargeable in bankruptcy.

Appeal from Circuit Court of Cook county; Hon. ROBERT J. DUNEE, presiding.

Judgment order entered November 25, 1940, affirmed. Heard in second division, first district, this court at April term, 1941.

Heber T. Dotson, for appellants;

Lawlor Walsh, for appellee.

Opinion by PRESIDING JUSTICE SCANIAN.

“Not to be published in full.” Opinion filed November 28, 1941; rehearing denied December 10, 1941.