Eldredge v. Huntington

• Decision Date: 31 December 1840
• Citation: 3 Ill. 535,2 Scam. 535,1840 WL 2999
• Parties: JOHN W. ELDREDGE et al.v.NORMAN HUNTINGTON.
• Court: Illinois Supreme Court

2 Scam. 535

3 Ill. 535

1840 WL 2999 (Ill.)

JOHN W. ELDREDGE et al.

v.NORMAN HUNTINGTON.

Supreme Court of Illinois.

December Term, 1840.

THIS was an action of assumpsit commenced by the defendant in error, against the plaintiffs in error, before Henry L. Rucker, Esq., a justice of the peace of Cook county. The justice rendered judgment for the defendant in error, for the sum of $74.65, and costs, from which an appeal was taken to the circuit court of Cook county, where the cause was tried at the April term, 1840, before the Hon. John Pearson, without a jury. The judgment of the justice was affirmed for $77.25. The defendants below moved for a new trial, for the following reasons: “1. The verdict is against the law, and against the evidence. 2. Alonzo Huntington, who was admitted as a witness, and who was a principal witness, and upon whose testimony the verdict must have been given, was security for costs in this suit, and an incompetent witness, which was not known to the counsel for defendant, till after the trial; the paper on which the security was written, having been burned with Esquire Rucker's docket and papers.”

The defendants below also, at the same time, filed the following affidavit, to-wit:

“On the twenty-fifth day of April, A. D. 1840, this cause came on for trial, before the Cook county circuit court, and defendant filed a motion to dismiss, which was overruled by the court, and gave notice that he would insist upon a former recovery in the case, for the same cause of action, and filed his plea of non est factum, duly sworn to. The plaintiff called Henry L. Rucker, who testified that he was, on the 23d day of September, 1839, an acting justice of the peace in said county, and that, on that day he tried said cause; and that on said trial, a note was produced by said plaintiff, signed Eldredge & Dyer, for the sum of one hundred dollars, he thinks, payable to the plaintiff, on which was due, about the sum of sixty dollars; the defendant pleaded former recovery in bar, for the same cause of action;--recollects about sixty dollars was due on said note, and that former recovery was pleaded. Said note was destroyed in the fire in Chicago, in October last, with other papers, and the docket of the witness. The note was in the handwriting of Dr. Dyer. Plaintiff called F. A. Howe, who was a justice of the peace, and produced his docket, which is in the following words and figures, to-wit:

‘Norman Huntington v. John W. Eldredge and Charles V. Dyer. Demand, $61.08. Assumpsit. December 4th, A. D. 1838, summons issued to S. J. Lowe, Constable, returnable December 14th, at 10 o'clock, A. M. December 12th, summons returned, served by reading to both defendants, Constable's fees $0.60, December 14th, cause called, defendant Eldredge in court; plaintiff not, nor any person for him.'

‘The plaintiff's declaration, being on the following promissory note, to-wit: “Chicago, December 15, 1836. One day after date, we promise to pay to Norman Huntington, or his order, the sum of one hundred dollars, for value received, with interest at ten per cent. Eldredge and Dyer.” To which, defendant, Eldredge, pleads non est factum, and after being duly sworn, did depose and say, that he did not execute the note declared upon, nor was said note given in the course of the partnership deal, neither did he assent to have his name to said note, but did actually refuse so to do, previous to the execution of the same, and thereof prays judgment of nonsuit, which is sustained by me, and judgment rendered against the plaintiff for costs of suit.’ The said witness said he knew Eldredge and Dyer, in 1836, and that they were in partnership in the practice of medicine before, and at, and after, the date of said note; that the note described in his docket, was the note sued on before Esqr. Rucker; saw the note on the trial before Esqr. Rucker, and knew it to be the same; that the note and signature of Eldredge and Dyer were in the handwriting of Charles V. Dyer. On cross-examination, he stated it was the same note sued on before him; that he first entered judgment of nonsuit, and believed that, at the time, to be the proper judgment; that several hours afterwards, Mr. Skinner, attorney for Eldredge, desired him to enter judgment on the merits; and accordingly he struck out the words ‘a nonsuit;’ that at the trial of the cause before Rucker, he added, after the words ‘judgment,’ the words ‘of nonsuit;’ and that the judgment he intended to enter, was that of non-suit; that plaintiff did not appear before him at the trial; that the note was there, and the plea of non est factum was made and sworn to by defendant, and no evidence was produced. Witness was asked by plaintiff, if he knew of any note ever having been so executed by defendants before, who said he did not, and knew...