Belton v. Fisher

• Decision Date: 30 April 1867
• Citation: 44 Ill. 32,1867 WL 5088
• Parties: ELIZABETH BELTON, Administratrix of Estate of Samuel J. Belton, deceased, and JAMES YATES, Surviving Partner of Samuel J. Belton,v.CALEB B. FISHER.
• Court: Illinois Supreme Court

44 Ill. 32

1867 WL 5088 (Ill.)

ELIZABETH BELTON, Administratrix of Estate of Samuel J. Belton, deceased, and JAMES YATES, Surviving Partner of Samuel J. Belton,

v.CALEB B. FISHER.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Court of Common Pleas of the city of Aurora, Kane county.

Mr. J. W. LITTLE, for the appellant.

Mr. C. J. METZNER, for the appellee.

The case is sufficiently stated in the opinion of the court. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Elizabeth Belton, administratrix of Samuel J. Belton, and James Yates, surviving partner of Belton, sued Caleb B. Fisher before a police justice of the peace in Wisconsin, and recovered a judgment. The suit was brought in the court below on a transcript of that judgment. The laws of Wisconsin relating to the jurisdiction of justices of the peace and police justices are set out in the declaration. Defendant below filed a plea of nul tiel record; also a plea denying that Elizabeth Belton was administratrix, upon which pleas issues were formed. On the trial below, the plaintiffs offered in evidence a transcript of the record of the police justice and the letters of administration, which were rejected by the court, and a judgment was rendered in favor of the defendant, to reverse which plaintiffs bring the case by appeal to this court, and assign for error the rejection of this evidence.

We are at a loss to see that the letters of administration were admissible for any purpose. At the common law the surviving partner alone has the right to sue for and recover debts due and owing the firm, and unless a different rule prevails in the courts of Wisconsin, the administratrix improperly joined in bringing the suit. But that was an objection which should have been taken in the court in which the original suit was brought. Failing to take advantage of it before the police justice, the judgment rendered on that trial became binding and conclusive on that question until reversed or overruled. So with the question as to whether Elizabeth Belton was administratrix. That was an issue tried and determined by the police justice, and that determination is as binding as the finding that the defendant was indebted to the plaintiffs. As long as that judgment remained in force, the mere production of the record or a transcript proved the fact, as between the parties to the judgment, that she was administratrix of Samuel J. Belton. This being the case, the plea that she was not administratrix interposed in the court below presented an immaterial issue, and it did not matter whether the letters were admitted or rejected. The averment in the declaration would have been fully proved by the transcript of the record had it been admitted.

The transcript from the docket of the police justice was rejected because of a variance from the declaration in the name of Elizabeth Belton. She sued in this case as Elizabeth Belton, and she is named in the transcript as Elizabeth ““Beton,” without any averment in the declaration that the judgment was in favor of plaintiffs below, but recovered in the name, as to her, of “Beton.” These names are different in orthography, but only slightly so in sound. In the case of Stevens v. Stebbins, 3 Scam. 25, the court held that there was no variance between the names Steven and Stevens. And the court quote approvingly two cases from the Supreme Court of Indiana, in one of which the court held there was not variance between the names Beckwith and Beckworth, and in the other that there was no material variance between the names of Susan and Susanna. In that case this court say that it appears that courts at the present day are not confined to the rigid rules of idem sonans, but inquire whether the variance is material. Tested by this rule we are not prepared to hold that the variance is...