Boone v. Stone
| Decision Date | 31 December 1846 |
| Citation | 3 Gilman 537,1846 WL 1996,8 Ill. 537 |
| Parties | LEVI D BOONEv.CALEB STONE, et al., for the use of Elias B. Paine. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
SCIRE FACIAS, in the Madison circuit court, brought by the nominal plaintiffs below, who are defendants here, for the use of the beneficial plaintiff, against the present plaintiff in error. Judgment was rendered against the defendant below on a demurrer to one of his pleas. He prosecutes a writ of error, and the several assignments of error will appear in the opinion of the court.
A. T. BLEDSOE, for the plaintiff in error.
E. KEATING, H. W. BILLINGS, and L. B. PARSONS, jr., for the defendants in error.
a1
In this case a scire facias was issued from the court below to revive a judgment rendered at the August term, A. D. 1837, in favor of Stone, Manning and Glover, against the plaintiff in error, Levi D. Boone. The scire facias is in the usual form, except that it contains the following allegation: “And, whereas, the said judgment has been assigned and transferred to one Elias B. Paine, and he having besought us to revive said judgment.”
Boone pleaded three pleas. First, that the assignment mentioned in the scire facias was never made, as therein stated; second, that after the judgment in the scire facias mentioned, and before the assignment of the same as alleged in said scire facias, Manning, Glover and Stone, severally become bankrupts, and received their discharges and certificates, as such, under the act of congress in such cases made and provided; and third, Nul tiel record, concluding, etc.
To the first and second pleas the plaintiffs below demurred, and the court sustained the demurrer. To the third they replied, “and the plaintiff doth the like.”
The errors assigned are: First, that the court below erred in sustaining the demurrer to the first and second pleas; second, in giving judgment against defendant when his third plea was not replied to; and third, in rendering judgment against defendant below, whereas it should have been in his favor.
As to the first plea no question has been made upon the argument, that to it, the demurrer was properly sustained. It is conceded, that under that plea and the state of facts presented by it, it would have been immaterial whether such assignment had been made or not, so far as the defendant in the court below was concerned. He could only be compelled to pay the money once, and whether he should pay it upon an execution or judgment, suggesting that it was for the use of a third person or otherwise, would be to him a matter of no moment. This suggestion upon the record is in all cases designed, and permitted, only for the purpose of protecting the equitable interests of the assignee of a chose in action or judgment, when such assignee is not by law allowed to sue or prosecute in his own name. A defendant can in no case take advantage of, or be in any respect affected or prejudiced by such proceeding.
The real issue and the only material one tendered by the second plea,...
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