Claflin v. Dunne

• Decision Date: 15 June 1889
• Citation: 129 Ill. 241,21 N.E. 834
• Parties: CLAFLIN et al. v. DUNNE.
• Court: Illinois Supreme Court

129 Ill. 241

21 N.E. 834

CLAFLIN et al.

v.DUNNE.

Supreme Court of Illinois.

June 15, 1889.

Appeal from appellate court, First district.

March 1, 1884, the appellee, Edward F. Dunne, began suit in assumpsit against Horace B. Claflin and H. B. Claflin & Co., laying his damages at $3,000. The declaration filed the same day contained only the common counts. March 13, 1884, the defendants, and each of them, by their attorneys, Flower, Remy & Gregory, filed the plea of non assumpsit, the plea being entitled ‘Edward F. Dunne vs. Horace B. Claflin, Edward C. Eames, Horace J. Fairchild, William S. Dunne, Dexter N. Force, Daniel Robinson, and John Claflin.’ January 20, 1887, a jury being waived, the cause was tried to the court, the issues found for plaintiff, his damages assessed at $2,500, and judgment entered accordingly. January 26, 1887, on motion of plaintiff, the record of the cause was amended by setting out at large the names of all the defendants in the papers, proceedings, and the order of judgment. May 22, 1888, a written motion was filed by John Claflin as executor of Horace B. Claflin, in which he prayed leave (1) to enter his general appearance as such executor in said cause; and (2) to suggest of record the death of Horace B. Claflin, showing that he died on November 14, 1885; and moved the court (1) to set aside and vacate the said judgment as against the said Horace B. Claflin, deceased, because the latter was dead at the time the judgment was rendered against him; and (2) to vacate and set aside the said judgment as against all of the defendants. On the same day a like motion was filed by John Claflin, and the other defendants, praying the same relief. Accompanying these motions are two exhibits: (1) An affidavit of one Anderson, who swears that he knew Horace B. Claflin, and that he died on the 14th day of November, 1885; (2) an exemplified copy of the last will and testament of Horace B. Claflin, deceased, the probate thereof, and the letters testamentary that issued thereon on November 28, 1885, from the surrogate's court of New York city to John Claflin as sole executor. Against these motions appellee filed an affidavit of C. W. Browne, showing that said John Claflin is a son of Horace B. Claflin, and was his partner and a member of said firm of H. B. Claflin & Co. at the time of the commencement of said suit; that said John Claflin, immediately after the trial of said cause, and during the same term at which judgment was rendered, and before the time for filing bond and bill of exceptions had elapsed, employed the firm of Kraus, Mayer & Brackett as counsel for defendants, in place of the firm of Flower, Remy & Gregory; that said John Claflin, and all the other defendants, had personal knowledge of the death of said H. B. Claflin at the time of said trial; that said Kraus, Mayer & Brackett filed a written motion to set aside said judgment, and for a new trial in said cause, on February 5, 1887, on behalf of H. B. Claflin, which motion was denied. A counter-affidavit was filed on behalf of said petitioner, in which Stephen S. Gregory swears that his firm acted as attorneys for defendants until about February 1, 1887, at which time Mr. Mayer or his firm was retained in place of Flower, Remy & Gregory; that he (Gregory) conducted the cause on behalf of defendants, and that none of them were present at the trial; that on January 29, 1887, he wrote and caused to be mailed to plaintiff a letter, a copy of which is as follows: ‘Chicago, January 29, 1887. E. F. Dunne, Esq., 79 Clark Street, City-Dear Sir: I learn from my clerk that you have taken judgment against H. B. Claflin with the rest of the firm of Claflin & Co. He died some time since, but after the commencement of your suit. I may perhaps suggest his death upon the record, and move to vacate the judgment, unless you take some action. Yours, truly, S. S. GREGORY.’ Both motions of May 22, 1888, were denied. Exception was taken by John Claflin, as executor, and also by the other defendants, and an appeal taken to the appellate court. Judge GARY having heard and overruled the motion in the lower court, and the other two judges differing in opinion, the appellate court affirmed, by a divided court, the ruling of the lower court.Kraus, Mayer & Stein

, for appellants.

John Maynard Harlan (Smith & Pence, of counsel,) for appellee.

CRAIG, C. J.

The first inquiry presented by the record for determination is whether the judgment rendered against Horace B. Claflin is void, or is it voidable only? It will be observed that this is not a case on its facts where the action was instituted against a dead person and a judgment followed. In such a case it may be conceded that the judgment would be void, on the ground that the court never acquired jurisdiction of the person of the defendant. But this case stands upon a different basis, and must be decided upon different grounds. Here the action was commenced while Claflin was alive. He appeared in court, and pleaded to the action. The court thus had jurisdiction of the subject-matter and of the person, and the question arises whether, after the filing of the plea, the death of Claflin, without notice of the death being brought to the attention of court, deprived the court of jurisdiction to render a judgment on the cause. The question is one not free from difficulty, and one, too, upon which the authorities are not harmonious. Freeman on Judgments, § 140, says: ‘If jurisdiction be obtained over the defendant in his life-time, a judgment rendered against him subsequently to his death is not void.’ In section 153 the author says: ‘Judgments for or against deceased persons are not generally regarded as void on that account, * * * and, while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears upon the record, or by writ of error coram nobis, if the fact must be shown aliunde.’ The same doctrine has been announced by the supreme court of Pennsylvania. Warder v. Tainter, 4 Watts, 278; Yaple v. Titus, 41 Pa. St. 203. In the last case it is said: ‘Now, it would seem to be well established that in civil proceedings against a person his death does not so completely take away the jurisdiction of a court which has once attached as to render void a judgment subsequently given against him. The judgment is reversible in error, if the fact and time of death appear on the record, or in error coram nobis, if the fact must be shown aliunde; but it is not void.’ See, also, Coleman v. McAnulty, 16 Mo. 173;Spalding...