Harvey v. Drew

• Decision Date: 30 September 1876
• Parties: JOEL D. HARVEYv.MARCUS D. DREW.
• Court: Illinois Supreme Court

82 Ill. 606

1876 WL 10265 (Ill.)

JOEL D. HARVEY

v.MARCUS D. DREW.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding. Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for the appellant.

Messrs. MILLER & FROST, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the 13th day of July, 1865, defendant and plaintiff, in connection with four other persons, contracted with the owners for a release and assignment of their interest in contracts for the purchase of certain property known as the ““Rooker farm,” for the sum of $107,500. The conveyance was to be made upon the full payment of the contract price, which was to be paid $27,500 cash in hand, and the balance in monthly installments of $16,000 each, with interest. All the purchase money was paid as it became due, except the last installment of $16,000, with the interest that had accrued thereon. On this last installment, suit was brought in the Supreme Court of New York, against plaintiff and others, and judgment obtained for the whole amount, with interest and costs. This judgment was subsequently compromised by plaintiff and Bates, one of the obligors, for an amount less than what was justly due. This action is brought to recover of defendant his aliquot share of the amount paid by plaintiff to discharge their joint obligation.

The declaration contains special and the common counts. In the special counts it is averred, in substance, plaintiff and defendant, in connection with the other persons named, had entered into a contract with the owners for the purchase of certain property for the sum of $107,500, of which $27,500 was paid in cash, and the balance to be paid in monthly installments of $16,000 each, which contract was a joint obligation, under seal; that a judgment was obtained by the owners of the indebtedness, in the Supreme Court of New York, for the amount of the last installment, and it is then averred plaintiff had discharged that judgment, by reason whereof defendant became liable to pay him his proper proportion by way of contribution. The general issue was filed to all the counts, nul tiel record as to the judgment described in the first and second counts, and a third plea as to the first and second counts, in which it was averred the supposed judgment recovered in New York was rendered in a cause in which the court had no jurisdiction of the person of the defendant, by service of process or otherwise. The latter plea presented no defense to the action, and a demurrer was properly sustained to it. Had the declaration been upon the judgment to enforce it against defendant, the plea, under the decisions of this court, would have been good. A party can not have execution of a judgment rendered in another State, where the court that assumed to pronounce it had no jurisdiction either of the subject matter or the person of defendant. But that is not this case. It is not to enforce the judgment obtained in New York against defendant. The obligation upon which the declaration counts, springs out of the contract entered into by the parties for the purchase of the oil land. That, as we have seen, is a joint obligation, and the principle is not questioned, as we understand counsel, that one obligor or surety who advances money for a co-obligor or co-surety may be indemnified to the extent of his advances. Klein v. Mather, 2 Gilm. 417, and other cases in this court.

It is, therefore, wholly immaterial whether defendant was served with process in the suit...