Fabbri v. Cunio
| Decision Date | 30 April 1878 |
| Citation | 1 Bradw. 240,1 Ill.App. 240 |
| Parties | CHARLES FABBRIv.MARY CUNIO. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.
Mr. E. Hanecy, for appellant; upon the question of suit being prematurely brought, cited Mullett v. Shrumph, 27 Ill. 110; Dickerson v. Sutton, 40 Ill. 403; 2 Pick. 368; 3 Wend. 479; 17 Wend. 419.
Messrs. M. A. Rorke & Son, for appellee; that a compromise of a legal claim or right is a sufficient consideration to support a promise to pay, cited Foster v. Allanson, 2 T. Rep. 479; Miller et al. v. Hawker, 66 Ill. 185; McKinley v. Watkins, 13 Ill. 140; 1 Wm. Saund. Rep. 210; 1 Par. on Con. 440; Burnside v. Potts, 23 Ill. 411; Honeyman v. Jarvis, 79 Ill. 318; Buchanan v. International Bank, 78 Ill. 500.
As to the introduction of a certified copy of a deed as evidence: Rev. Stat. 836, § 21; R. R. I. & St. Louis R. R. Co. v. Lynch et al. 67 Ill. 149; Rev. Stat. 299, §§ 35, 36.
As to admission of testimony of a husband in a suit where the wife is a party: Rev. Stat. 489, § 5; Straubher et al. v. Mohler, 80 Ill. 21.
Upon the point of preponderance of testimony: Murray v. Haverty 70 Ill. 318; White v. Stanbro, 73 Ill. 575; Hudson v. Hadden, 82 Ill. 265; Peoria A. & D. R. R. Co. v. Sawyer, 71 Ill. 361; Carpenter v. Davis, 71 Ill. 395; Ryan v. Donnelly, 71 Ill. 100; Crist v. Wray, 76 Ill. 204.
Error cannot be assigned on behalf of a party who does not appear, and has not been served; Stewart v. Hibernian Banking Ass'n, 78 Ill. 596; VanValkenberg v. Trustees of Schools, 66 Ill. 103; Clark et al. v. Marfield, 77 Ill. 258; Horner v. Zimmerman, 45 Ill. 14; Cromine v. Tharp, 42 Ill. 120; Tibbs v. Allen 27 Ill. 119; Henrickson v. Van Winkle, 21 Ill. 274; Richards v. Green, 78 Ill. 525; Fonville v. Sausser, 73 Ill. 451; Havighorst v. Lindberg, 67 Ill. 463.
In this case appellee brought suit before a justice of the peace against Charles Fabbri, the appellant, and Sarah Fabbri, his wife. Summons was duly served on both of the defendants, and upon a trial before the justice of the peace, a judgment was rendered in favor of appellee against appellant alone, for $200 and costs. As to the other defendant, judgment was rendered in her favor against appellee.
From this judgment appellant took an appeal to the Circuit Court of Cook county, where the issues between him and appellee were again tried, resulting in a verdict for appellee, and a judgment in her favor against appellant for $200 and costs.
It is objected that the judgment in the Circuit Court was erroneous, because no summons was issued to Sarah Fabbri, and she was not made a party to the proceedings in that court upon the appeal.
The section of the statute under which it is insisted that summons should have issued to Sarah Fabbri before a trial could properly be had in the Circuit Court, is as follows:
“When an appeal shall be taken by one of several parties from the judgment of a justice of the peace, the clerk of the court shall issue a summons against the other parties, notifying them of the appeal in the said court, and requiring them to appear and abide by and perform the judgment of the court in the premises, which summons shall be served as other process issued in appeal cases, and in case such summons shall be returned that parties are not found, the cause shall, at the first term of the court, be continued, but at the second term may be tried, and the court shall have power to give the same judgment as though all the parties to the judgment had joined in the appeal, unless the appearance of the appellee shall be entered as herein provided.” R. S. 1874, Chap. 79, Sec. 70.
Under this section it was necessary to bring before the Circuit Court only the persons who were the parties to the judgment appealed from. While it is true that both Charles and Sarah Fabbri were sued, the judgment from which the appeal was taken was rendered against Charles alone. The other defendant had established her defense, and a separate judgment was rendered in her favor against appellee. She was not, within the meaning of the statute above quoted, a party to the judgment against her co-defendant. For all the purposes of the appeal she was to be treated the same as though she had never been joined in the suit.
The object of the statute is to provide, in cases where one of several joint parties to a judgment appeals, for bringing before the court the other joint parties, so that upon trial a proper judgment may be rendered against them all.
Where, however, upon a trial before a justice of the peace, part of the defendants succeed in establishing their defense, and judgment is rendered against the remaining defendants alone, the defendants against whom judgment is rendered cannot by appealing, subject their co-defendants who have successfully defended, to a re-trial of the suit. We think in this respect there was no error in the proceedings of the Circuit Court.
The circumstances out of which the indebtedness for which this suit was brought arose, are briefly as follows: On the 15th day of August, 1871, appellee's husband, Joseph Cunio, being the owner of a house on Van Buren street, Chicago, and of a leasehold interest in the lot on which said house stood, conveyed said premises to appellant in consideration of $1,200 cash, and a house and lot on West Chicago Avenue. In consummation of this trade, appellant and wife, with the consent of said Joseph Cunio, executed a deed with covenants of warranty, purporting to convey said West Chicago Avenue property to appellee. This deed was duly recorded, and at the time of the great fire of October 9th, 1871, both the deed and record were destroyed.
In March, 1872, appellant and wife executed to appellee a second warranty deed for said premises, which was filed for record March 15th, 1872. Subsequently an action of ejectment was commenced against appellee and others by one Ferdinand Lubecke, to recover said West Chicago Avenue property, which resulted in a judgment against appellee and her co-defendants, whereby appellee was evicted from said premises. Appellee thereupon brought her action in covenant against appellant and wife, upon the covenants contained in said second warranty deed. While this suit was pending, certain negotiations for...
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