Commercial Loan & Trust Co. v. Mallers

• Decision Date: 26 October 1909
• Citation: 242 Ill. 50,89 N.E. 661
• Court: Illinois Supreme Court
• Parties: COMMERCIAL LOAN & TRUST CO. v. MALLERS.

242 Ill. 50

89 N.E. 661

COMMERCIAL LOAN & TRUST CO.

v.MALLERS.

Supreme Court of Illinois.

Oct. 26, 1909.

Error to Appellate Court, First District.

Action by the Commercial Loan & Trust Company against John B. Mallers. From a judgment of the Appellate Court refusing to quash an execution in favor of plaintiff, defendant brings error. Affirmed.

See, also, 141 Ill. App. 460.

Thurman, Stafford & Hume, for plaintiff in error.

Horace G. Stone and Ira C. Wood, for defendant in error.

HAND, J.

This is a writ of error sued out from this court to the Appellate Court for the First District to review the judgment of that court in refusing to quash an execution issued out of the office of the clerk of that court on January 6, 1909, in favor of the defendant in error and against the plaintiff in error.

It appears from the record that the defendant in error, the Commercial Loan & Trust Company, a banking corporation organized under the laws of this state, in 1895 brought suit in the circuit court of Cook county against John B. Mallers, the plaintiff in error, as guarantor upon a promissory note; that after numerous trials a judgment was rendered in that court in favor of the plaintiff in error, which judgment was reversed, without remanding, by the Appellate Court for the First District, and a judgment for $4,755.55 and costs was rendered by that court in favor of the defendant in error against the plaintiff in error, which judgment was affirmed by this court; that on the case being remanded to the Appellate Court the execution sought to be quashed was issued by the clerk of said Appellate Court to enforce the collection of said judgment, and levied upon the real estate of the plaintiff in error.

The ground of the motion to quash is that the defendant in error went into voluntary liquidation on December 2, 1898, and that by reason of that fact, it is said, it is without legal capacity to sue out an execution on the judgment rendered in its favor in the Appellate Court, and that said execution for that reason is void, and should be quashed. We do not agree with the contention that said execution was wrongfully sued out for want of capacity in the defendant in error to take out execution upon said judgment, for the following reasons: First. If the plaintiff in error desired to raise the question of the capacity of the defendant in error to sue, he should have done so in the trial court, by a plea in abatement or otherwise (Stoetzell v. Fullerton, 44 Ill. 108;Life Association of America v. Fassett, 102 Ill. 315), and having failed so to do, the judgment rendered against him in the name of the defendant in error was a valid and binding judgment, and if the judgment was a binding and valid judgment, the defendant in error, under the statute, had the right to enforce its collection by execution. The suit was commenced in 1895, and defendant in error went into voluntary liquidation in 1898, and the judgment was rendered in 1908. About 10 years intervened between the voluntary dissolution of the defendant in error and the date of the judgment, during which time the plaintiff in error failed to raise the question of the capacity of the defendant in error to sue, and we think it too late for him to raise that question after the case has passed through the circuit, Appellate, and Supreme Courts, and final judgment has been rendered against him in the Appellate Court. The judgment in favor of the defendant in error was res judicata of all the defenses...