Finn v. Finn

• Decision Date: 31 December 1878
• Parties: PATRICK FINN.v.JOHN FINN.
• Court: United States Appellate Court of Illinois

3 Ill.App. 615

3 Bradw. 615

PATRICK FINN.

v.JOHN FINN.

Appellate Court of Illinois, Second District.

December Term, 1878.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of La Salle county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed May 2, 1879.

Mr. G. S. ELDREDGE, for plaintiff in error: That a power of attorney executed by an infant is voidable merely, cited Hastings v. Dollarhide, 24 Cal. 195; Hardy v. Waters, 38 Me. 450; Kemp v. Cook, 18 Md. 139; Ashton v. Langton, 30 E. C. L. 567; Cole v. Pennoyer, 14 Ill. 158; Reid v. Degener, 82 Ill. 508; Tyler on Infancy and Coverture, § 18.

In some cases it has been held void: Saunderson v. Marr, 1 H. Bl. 75; Knox v. Flack, 22 Penn. 33; Fonda v. Van Horne, 15 Wend. 403; Laurence v. McArter, 10 Ohio 37; Bennett v. Davis, 6 Cow. 393.

As to the force and effect of judgments by confession: Lake v. Cook, 14 Ill. 353; Bush v. Hanson, 70 Ill. 480; Osgood v. Blackmore, 59 Ill. 261.

A plea of infancy is a personal one and may be waived; Blake v. Douglass, 27 Ind. 416; Simmons v. McKay, 5 Bush. 25; Beaubien v. Hamilton, 3 Scam. 215; Mains v. Cosner, 62 Ill. 465; Freeman on Judgments, 39, 102, 151.

Messrs. RICHOLSON & SNOW, for defendant in error; as to the contracts of infants, cited Metcalfe on Contracts, 111; Robeson v. Works, 56 Me. 102; Addison on Contracts, 113.

A judgment rendered by a court without having jurisdiction of the person is void: Wimberly v. Hurst, 33 Ill. 166; Wight v. Wallbaum, 39 Ill. 555; Eltson v. Chicago, 48 Ill. 514; Mulford v. Stalzenbach, 46 Ill. 303; Huls v. Buntin, 47 Ill. 396; White v. Jones, 38 Ill. 160; Miller v. Handy, 40 Ill. 449; Campbell v. McCahan, 41 Ill. 46; Goudy v. Hall, 30 Ill. 109; Clark v. Little, 41 Iowa, 497; McAuley v. Hargroves, 48 Ga. 50.

LELAND, J., dissenting.

To a declaration containing the common counts, of which the one in the usual form for money paid, laid out and expended, is the only one it is necessary to notice, the following plea was pleaded among others:

2. “And for a further plea in this behalf, defendant says actio non, because he says that this suit is brought for the sole and only purpose of recovering from this defendant the one-third part of two certain judgments alleged to have been recovered in the County Court of this county, in vacation after December term, A. D. 1867, against said plaintiff, which said judgments plaintiff claims to have paid and satisfied in full. Defendant avers that both of said judgments were entered up by the clerk of said court in the vacation after the said December term, 1867, without any service of process against this defendant, or of notice of any kind whatever by virtue of, or by the supposed authority of two certain promissory notes, with a power of attorney attached to each of said notes; said notes being what are known and described as judgment notes, in and by which the makers thereof assume to waive service of process, and to authorize any attorney-at-law to confess judgment in any court of record, either in term time or in vacation, in favor of the payees or the assignees thereof for the amount of such notes respectively and for certain attorney's fees; which said notes and each of them, were executed by plaintiff, one Richard Finn, and this defendant. And defendant avers that at the time he executed said notes and powers of attorney, and each of them, he was an infant under the age of twenty-one years, to wit: of the age of eighteen years, to-wit: at the county aforesaid; and defendant therefore avers that said notes and the powers of attorney attached thereto, and the said judgments rendered thereon, were and are, as to this defendant, absolutely void in law; and this defendant is ready to verify; wherefore he prays judgment, etc.”

There was a bill of particulars filed by plaintiff, describing the judgments paid by him, as having been rendered against him, and defendant and another person, and claiming one-third of the defendant, and the plea seems to be not only to the declaration but also to the bill of particulars, and is hardly intelligible without the latter. The bill of particulars, however, describes three judgments, the plea mentions two only.

There was a demurrer overruled to the plea, and judgment for the defendant, which plaintiff seeks to reverse.

Without examining the question whether the judgments mentioned in the plea should be considered valid until reversed or vacated or absolutely void, but treating them as absolutely void, and a payment of them as a mere payment of the notes it seems to me that this plea instead of presenting a defense to the money paid on the judgments admits a cause of action. It is not denied and, therefore, it is admitted that at the time when the promises in the declaration mentioned were made the defendant was an adult. “No distinction exists in pleading between an implied promise and an express one. It is true that in evidence the law in many cases implies from certain facts that a promise has been made, but in pleading, the supposed promise itself should be alleged.” 1 Chitty's Pl. 302. It may, therefore, be safely said that all alleged promises should always be considered express ones and admitted as such.

The allegation, therefore, in the declaration is that plaintiff paid the judgments, or amount due...