Belleville & St. L. Ry. Co. v. Leathe

• Decision Date: 03 January 1898
• Docket Number: 414.
• Citation: 84 F. 103
• Parties: BELLEVILLE & ST. L. RY. CO. v. LEATHE. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

84 F. 103

BELLEVILLE & ST. L. RY. CO. v. LEATHE. ^[1]

No. 414.

United States Court of Appeals, Seventh Circuit.

January 3, 1898

This action was brought by the Belleville & St. Louis Railway Companythe plaintiff in error, for the use of Edward L Thomas, against Samuel H. Leathe, the defendant in error upon an alleged promise of the latter to the railway company named to pay the company's indebtedness, including one of $60,000 to Thomas.The first count of the declaration alleges the premise and the consideration upon which it was made, and the existence and nonpayment of the debt.The second count, in addition to the averments of the first, alleges that at the September term, 1893, in the circuit court of St. Clair county, Ill., Edward L. Thomas brought an action against the plaintiff to recover the amount so due him; that the plaintiff caused the defendant to be notified of the pendency of that action, and authorized him to use its name in defending same; that in pursuance of the notice the defendant employed counsel, filed pleas, and entered upon the defense that the issue in that cause was whether the amount claimed by Thomas was then due and payable to him; that upon the trial, upon evidence introduced by both parties, the court gave judgment for Thomas for $53,022.23, which judgment is in full force and effect, and remains unpaid.The third count, besides repeating the averments of the first and second, alleges that while the action in the circuit court of St. Clair county was pending for trial the defendant, Leathe, in his own name and in the name of the plaintiff and the Belleville City Railway Company, to which the property of the Belleville & St. Louis Railway Company had been transferred, filed in said courta bill for an injunction to restrain Thomas from recovering judgment against the plaintiff upon said indebtedness; that among others, one of the issues made by the bill and answer thereto was whether the amount claimed by Thomas from plaintiff was then due and payable, and whether the defendant, by reason of a certain deed and the consideration therefor, had assumed the payment of the plaintiff's debts, including that to Thomas; that a full hearing was had upon that issue, and it was then and there fully adjudicated, the injunction denied, and the bill dismissed; that thereupon judgment was rendered in the action at law in favor of Thomas for the sum above named; that it was then and there adjudicated that the said sum was due and payable to Thomas, and that the defendant had assumed the payment thereof,--all which the plaintiff offered to prove by the record of the proceedings, judgment, and decree referred to.The only plea interposed was the general issue.At the hearing the plaintiff dismissed the first count of the declaration, and in support of the other two put in evidence transcripts of the record of the judgment at law and of the decree in equity in the state court.The transcript of the chancery suit contains the evidence on which the decree was based.No other evidence was offered, and thereupon the defendant moved the court, which, by agreement in writing was trying the case without a jury, to exclude the evidence offered.That motion the court afterwards sustained, and gave judgment for the defendant.The exclusion of the evidence is shown by a proper bill of exceptions, and error is assigned upon the ruling.Among the authorities cited on behalf of the plaintiff in error are: Durant v. Essex Co., 7 Wall. 107;Aurora City v. West, Id. 102;Cromwell v. Sack Co.,94 U.S. 351;Lyon v. Manufacturing Co.,125 U.S. 698, 8 Sup.Ct. 1024;Outram v. Morewood, 3 East. 346; Freem.Judgm.Secs. 249,270;Black, Judgm.Secs. 548, 614.

Chas. W. Thomas, for plaintiff in error.

G. A. Koerner, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge, after the foregoing statement, .

A fuller statement of the...