Dispatch v. Fish

Decision Date20 December 1905
PartiesKANAWHA DISPATCH v. FISH.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Appellate Court, First District.

Action by the Kanawha Dispatch against Solomon T. Fish and others, constituting the firm of S. T. Fish & Co. The suit was dismissed against all the defendants except Fish. A judgment was rendered for plaintiff, which was reversed by the Appellate Court, and plaintiff brings error. Reversed.

Rehearing denied February 8, 1906.Curtis H. Remy and Edward P. Vail, for plaintiff in error.

Newman, Northrup, Levinson & Becker (C. E. Cleveland, of counsel), for defendant in error.

CARTWRIGHT, C. J.

The Kanawha Dispatch brought a suit in assumpsit in the superior court of Cook county against Solomon T. Fish, defendant in error, Maurice H. Mandelbaum, and Alfred P. Lee, as constituting the firm of S. T. Fish & Co., and filed a declaration in the common counts. A bill of particulars was filed, to the effect that defendants made a claim against the Chesapeake & Ohio Railway Company for damages on a lot of butter delivered to plaintiff for shipment from Chicago to Hampton, Va., said railway company owning one of the lines over which the butter was transported; that on April 5, 1893, said railway company paid to defendants $1,007.41, the full value of said butter; and that about February 28, 1894, the defendants made a claim against plaintiff for the same loss, and plaintiff, in ignorance that the claim had been paid by said railway company, again paid the defendants the sum of $1,007.41 in settlement of the claim. The character of the plaintiff as a corporation or legal entity was not alleged in the declaration; but a plea of nul tiel corporation was filed, with other pleas. The suit was afterward dismissed as to Mandelbaum and Lee, when it was ascertained that Fish was the only member of the supposed firm of S. T. Fish & Co. and carried on business under that name. Upon a trial the facts alleged in the bill of particulars were proved, and no evidence was offered by the defendant, except evidence tending to prove that the plaintiff was not a corporation. There was a verdict, followed by a judgment, for the plaintiff for the amount of the claim. The defendant appealed to the Appellate Court for the First District. That court reversed the judgment and remanded the cause, but afterward amended the judgment by striking out the remanding order and inserting in the judgment the following finding of fact: ‘The court finds that the appellee, the Kanawha Dispatch, is not and never has been a corporation.’ The writ of error in this case was sued out to review the judgment of the Appellate Court.

A motion was made by the defendant in error to dismiss the writ on the ground that plaintiff in error is neither a natural person nor a corporation, and therefore is incapable of maintaining the action, and at his request the motion was reserved to the hearing on the assignment of errors. The motion is denied. An issue was formed in the trial court, under the plea of nul tiel corporation, as to the corporate existence of the plaintiff. The issues in that court were found in favor of the plaintiff. The record shows that the trial court was of the opinion that the plea was no defense to the action, and refused all instructions offered by the defendant directing the jury to find a verdict in his favor if they concluded that the plaintiff was not a corporation. On appeal the judgment was reversed, and by amendment the judgment of the Appellate Court was afterwards made final, with the finding of fact, and there was judgment against plaintiff in error for costs. The writ in this case was sued out to bring into review in this court the judgment of the Appellate Court. The writ corresponds with the record of the Appellate Court, and plaintiff in error, being a party to the record in that court, had a right to the writ. Defendant in error did not interpose any special plea, but joined in error by the common plea in nullo est erratum to the assignment of errors. In that condition of the record defendant in error is not entitled to have the question of fact as to the corporate existence of plaintiff in error tried upon a motion, if the want of corporate existence would be good ground for dismissing the writ.

The finding of the Appellate Court that plaintiff is not...

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