Allen v. Watt

• Citation: 1875 WL 8617,79 Ill. 284
• Parties: CHARLES W. ALLEN et al.v.JOHN WATT et al.
• Decision Date: 30 September 1875
• Court: Supreme Court of Illinois

79 Ill. 284

1875 WL 8617 (Ill.)

CHARLES W. ALLEN et al.

v.JOHN WATT et al.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. DICKEY & CAULFIELD, and Mr. J. W. SHOWALTER, for the appellants.

Mr. M. W. ROBINSON, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The questions raised on this record arise out of the following facts: John Watt commenced an action of assumpsit in the Cook circuit court, on the 13th of January, 1873, against Charles W. Allen and Almond D. Ellis, wherein, on the 29th of March, 1873, a judgment was rendered against them for the sum of five hundred and forty-seven dollars and sixty-six cents, together with the costs. On March 31, the plaintiff in the judgment assigned the same to Carlisle Mason, who, on the third day of May thereafter, placed the assignment on file in the clerk's office, and caused the assignment to be noted on the record. On February 20, 1874, a fieri facias was issued on this judgment, and came to the hands of T. M. Bradley, sheriff, to be executed.

On March 10, 1873. the firm of Worthington & Power, doing business in Cincinnati, Ohio, under that name and style, and creditors of John Watt and one Johnson, commenced their action by attachment, in the Court of Common Pleas of Hamilton county, State of Ohio, against Watt and Johnson, and at the same time Allen and Ellis were summoned as garnishees, as debtors of Watt, and such proceedings were had that, on March 22, 1873, to save costs, as is alleged, they filed their answer to said garnishment, wherein they acknowledged they were indebted to Watt at the time of the service of the summons upon them, in the sum of five hundred and forty-five dollars and sixty-six cents. Watt was brought into court by publication against him and Johnson, and, on June 30, 1873, a judgment was rendered against them for the sum of eight hundred and eight dollars and twenty-six cents, and then and there it was ordered Allen and Ellis pay the amount of their indebtedness to Watt, being five hundred and forty-five dollars and sixty-six cents, to the clerk of the court within ten days thereafter. This amount they allege they paid at the time to Worthington & Power, by direction of the clerk of the court, and this amount, they allege, is the identical claim sued for by Watt, and for which he recovered the judgment above mentioned.

On February 20, 1873, Worthington & Power brought their action of assumpsit in the Superior Court of Cook county, against Watt and Johnson, for the same cause the attachment proceedings were instituted by them in the Court of Common Pleas of Hamilton county. To this action, Watt and Johnson, at the March term, 1873, pleaded the general issue, and filed therewith the affidavit of Watt, that they, Watt and Johnson, had a good defense to the action, to the extent of six hundred and eighty-nine dollars and twenty-five cents. At the July term following, the defendants, Watt and Johnson, filed a special plea, setting up the recovery of the judgment in the Court of Common Pleas of Hamilton county, Ohio, against them, for the same cause of action, for eight hundred and eight dollars and twenty-six cents, and another special plea in bar as to five hundred and forty-five dollars and sixty-six cents, then setting out these attachment proceedings, the garnishment of Allen and Ellis, and their answer admitting a debt due by them to Watt of five hundred and forty-five dollars and sixty-six cents; that, at the June term, 1873, of the Common Pleas court, judgment was rendered against them for eight hundred and eight dollars and twenty-six cents, and against Allen and Ellis for five hundred and forty-five dollars and sixty-six cents, in favor of Worthington & Power; averring execution ordered against Allen & Ellis after ten days; that this judgment remains in full force; and that, afterwards, in July, 1873, Allen and Ellis paid five hundred and forty-five dollars and sixty-six cents, pursuant to said order of court, and plead the same in bar of a recovery by Worthington & Power to that extent, against them.

At the time of filing these special pleas, Watt filed an affidavit for a continuance, alleging, as cause, that, after the commencement of the suit, the plaintiffs sued defendants for the same cause, to the...