Citations
- 321 Ill. App. 324
Full opinion text
Mr. Justice Stone
delivered the opinion of the court.
This is an action to recover on a standard fire insurance policy for $1,000 issued by defendant, on a building occupied and to be occupied only for dwelling purposes, which was issued to plaintiffs, Sebastian Huskamp and Rose Huskamp, who sue for the full amount of the policy for loss sustained by the destruction of this building by fire on June 16, 1934.
This policy contained a mortgage clause providing that loss under this policy should be payable tó F. W. Schneidewind, trustee, who is named therein, as his interest may appear, and who held a mortgage on the premises on which this building was situated that secured a note of the Huskamps for $600, and the other plaintiff, Frank Reinhardt, trustee, sues as assignee of Schneidewind and claims that he is entitled to an equitable lien upon any judgment which plaintiff, Huskamp, obtained for the amount of this policy.
The case was tried upon a second amended complaint. The original complaint was filed June 2, 1935, which was a year after the fire, lacking four days and by Frank Reinhardt, trustee as sole plaintiff. He alleged that the Huskamps had refused to join in the action and he made them parties defendant; service was had upon them but they filed no pleading.
Thereafter, on September 23,1935, an amended complaint was filed in which, in addition to Reinhardt, the Huskamps were made parties plaintiff and the insurance company the sole defendant. No leave of court was asked or given to make the Huskamps parties plaintiff, and upon defendant making a motion to strike this amended complaint on that ground, this complaint was stricken. Plaintiffs elected to stand on this amended complaint. Thereupon the court dismissed the suit and entered judgment against plaintiffs for costs from which judgment they prosecuted an appeal to this court, which judgment was reversed on the ground that defendant’s motion was limited to and only questioned plaintiffs’ right to transpose the Huskamps from parties defendant to plaintiff and that the court should have limited its order in the same way and struck their names as parties plaintiff from the amended complaint. It was held error to dismiss the suit in bar of the action. Reinhardt v. Security Ins. Co. of New Haven, Conn., 287 Ill. App. 320.
Thereafter the case was tried upon the second amended complaint, and at the conclusion of the evidence offered by plaintiff, and without any evidence being offered by defendant, the trial court, on motion of defendant, entered judgment for defendant, from which judgment, defendants appealed, and this court reversed and remanded the case for further proceedings. Reinhardt v. Security Ins. Co. of New Haven, Conn., 312 Ill. App. 1.
Upon the second trial of the cause, a finding was made in favor of plaintiff on the issues, and judgment was entered in favor of plaintiff Reinhardt for $600 and interest in the amount of $357 up to June 19,1942, a total of $957, and judgment was entered in favor of plaintiffs Huskamp for $43, the balance found due and payable on the insurance contract sued on, and $391.70 interest at 5 percent after August 16, 1934, a total of $434.70, from which judgment, the present appeal is prosecuted to this court. After judgment, on the suggestion of the death of plaintiff Reinhardt, there was substituted for him, as parties plaintiff, Walter Reinhardt and Gus Reinhardt, executors of the last will and testament of Frank Reinhardt, deceased.
On May 17, 1933, the defendant through A. S.