Barnes v. Barber

• Decision Date: 31 December 1844
• Citation: 1 Gilman 401,6 Ill. 401,1844 WL 4090
• Parties: ELI BARNESv.LEVI C. BARBER et al.
• Court: Illinois Supreme Court

1 Gilman 401

6 Ill. 401

1844 WL 4090 (Ill.)

ELI BARNES

v.LEVI C. BARBER et al.

Supreme Court of Illinois.

December Term, 1844.

TROVER, in the DeKalb circuit court, at the September term, 1843, brought by the appellant against the appellees, and tried by the Hon. JOHN D. CATON, without the intervention of a jury. Judgment for the defendants for costs.

The pleadings are set forth in the opinion of the court.

O. PETERS, for the appellant:

1. The three Barbers, having joined in the plea of the general issue, and two of them in a justification, they could not avail themselves of separate defences. Schermerhorn v. Tripp, 2 Caines, 108; Story's Pl. 52; Drake v. Barrymore, 14 Johns. 166; Higby v. Williams, 16 Johns. 214; Moore v. Parker, 3 Mass. 310.

2. If there be no evidence whatever against one of the several defendants, he may be discharged immediately; but if there be any, the least evidence against him, the case must go to the jury, and he must abide his fate with his co-defendants. 3 Chitty's Gen. Prac. 902, 903; 2 Tidd's Prac. 861; Child v. Chamberlain, 25 Eng. Com. Law R. 362.

3. The same rule should obtain where a jury is waived, and a case is submitted to the court, as if it were tried by a jury; the office of judge is completely merged into that of a juror. Gilmore v. Ballard, 1 Scam. 253. And where evidence tends to prove the issue, the court, like the jury, must weigh it. Davis v. Hoxy, 1 Scam. 406.

4. It was erroneous to render any judgment while there were issues to the country undisposed of. Lyon v. Barney, 1 Scam. 387; Manlove v. Bruner, Ib. 390; Bradshaw v. Hoblett, 4 do. 53; Bradshaw v. McKinney, Ib. 54.

H. BROWN, and T. L. DICKEY, for the appellees: On a plea of general issue, when there is no proof against defendants, they may be discharged. Drake v. Barrymore, 14 Johns. 166; Child v. Chamberlain, 25 Eng. Com. Law R. 362; Smith v. Moore, 3 Scam. 464.

A defendant interposing a defence personal to himself, is severed from the rest, and becomes a competent witness.

The case of Moore v. Parker, 3 Mass. 310, cited by counsel for appellant, has no application to the case under consideration.

After the testimony for the plaintiff is closed, a defendant may be discharged and be a witness. 4 Phil. Ev. 426; Child v. Chamberlain, 25 Eng. Com. Law R. 362.

A sale after the return day of a writ of execution is good. Platt v. Sherry, 7 Wend. 236; Phillips v. Dana, 3 Scam. 558.

An officer may justify under an execution, without producing the judgment. 3 Phil. Ev. 1078, note 738.

The fact of being present, without giving directions, does not make a party liable. 4 Phil. Ev. 249, note 428, in the notes to the second volume.

A constable may be a witness after discharge. 4 Phil. Ev. 426.

THOMAS, J.

This was an action of trover and conversion commenced by the appellant against the appellees, and Castle Churchill, for four oxen.

The defendant Churchill was not found. The pleas interposed by the defendants were:

1. The general issue, by all of said defendants, which was joined by the plaintiff.

2. By the defendants Levi C., and Clark L. Barber, justification under a judgment rendered and execution thereon issued by the said Levi C. Barber, as a justice of the peace, and a levy and sale of the property in question, thereon by the said Clark L. Barber, as a constable.

3. By the defendant Clark L. Barber in justification, that an execution issued by Levi C. Barber as a justice of the peace of the said county of De Kalb, “whereby the people of the state of Illinois commanded any constable of the said county, of the goods and chattels of Eli Barnes, of said county, to make the sum of $57.72, which Castle Churchill, who sues as well for himself, as for the county of De Kalb, lately recovered against the said Eli Barnes, in a certain plea against the said Eli Barnes,” etc. and a levy upon and sale of the said oxen, by him, the said Clark L. Barber, as constable of the said county by virtue of the said execution, etc.

The plaintiff demurred generally to the second and third pleas aforesaid, and they having been held good by the court, withdrew his demurrer to the said second plea, by leave of the court, and thereto replied de injuria, etc., and standing by his demurrer to the said third plea, the said demurrer was overruled, and judgment thereon rendered against the plaintiff for costs, and discharging the said defendant, Clark L. Barber.

The cause was then submitted to the court for the trial of the issues formed upon the first plea and the replication to the second plea, without the intervention of a jury.

The plaintiff having closed the testimony on his part, the court on the request of the defendant, Henry Barber, passed upon the issue joined as to him, and upon the ground that the evidence, although tending to prove his guilt, was wholly insufficient to warrant his conviction, found him not guilty and discharged him.

The defendant, Levi C. Barber, was then permitted, against the plaintiff's objections, to call the aforesaid Clark L. Barber, and examine him as a witness on the further trial of this cause, whereupon the plaintiff suffered a voluntary non-suit, on which a judgment was rendered, discharging the defendant, Levi C. Barber.

The plaintiff, prosecuting his appeal, assigns for error the judgment of the circuit court, overruling the demurrer to the third plea, and discharging the defendant, Henry Barber, and the order of said court permitting the defendant, Clark L. Barber, to testify as a witness, and the questions as to the regularity of discharging the said defendant, Henry Barber, and as to the competency of the said Clark L. Barber as a witness, having been preserved by bills of exceptions taken during the progress of the trial.

Before proceeding to the consideration of the assignment of errors, it becomes necessary to dispose of a preliminary question raised by the appellees. They insist that the appellant is precluded by reason of his having suffered a voluntary non-suit in the circuit court from asking a reversal of the judgment of that court, by the adjudication of this. Their general proposition, that a plaintiff may not prosecute his appeal of writ of error, for the reversal of judgment of voluntary non-suit is undeniably true. If the plaintiff considers the adjudication of the circuit court, on questions arising during the progress of the trial, erroneous, he may, by suffering a judgment in bar to go against him, entitle himself to a revision of such adjudications, on appeal or error, and if found erroneous, to their reversal; but if he prefer to take a non-suit, his only remedy is found in the court in which the action was commenced, by motion to set aside such non-suit, when entered with leave to make such motion, or in the institution of proceedings de novo, in that or some other court having original jurisdiction of the subject matter; and not in a resort to an appellate court. The judgment in such case is the consequence of his own volition, and consequently he can not allege that there was error in its rendition by the court. Van Wormer v. City of Albany, 15 Wend. 263; Ibid. 18 do. 172, 173. But the operation of this principle is limited by the effect of the judgment of non-suit in any case, and consequently such judgment as to one of several defendants, sued jointly in an action ex delicto, will not, although itself irreversible, preclude the plaintiff from prosecuting his appeal, or writ of error for the reversal of the judgment of the court discharging any one or more of the other defendants in such suit, either on the pleadings or evidence. The judgment of non-suit in such case is but a nolle prosequi as to one of several defendants, and whether entered before or after the discharge of the defendants not embraced within its operation, the judgment disposing of the case as to them is in no wise affected by it. In this view of the case, the record of the proceedings of the circuit court are closed from the view of this court, only so far as they relate to Levi C. Barber, as to whom alone...