Flake v. Carson
| Decision Date | 31 January 1864 |
| Citation | 1864 WL 2961,33 Ill. 518 |
| Parties | WILLIAM FLAKEv.JOHN B. CARSON. |
| Court | Illinois Supreme Court |
When a party appears for a specific purpose, or to show that he is not properly before the court, he should so restrict his motion. If he makes several motions in the cause, not limiting his appearance to a specific purpose, he will be held to have appeared generally for all purposes.
INTEREST: On open accounts.
By our statute interest is not chargeable in an open account when it has not been liquidated and a balance agreed upon.
ERROR to Circuit Court of Fulton County.
The case is sufficiently stated by the court.
Judd, Boyd & James, for plaintiff in error.
Ross, Tipton & Winter, for defendant in error.
This was an action of assumpsit for goods, wares and merchandise sold and delivered, for money, and on an account stated, and for interest, against the plaintiff in error impleaded with William Martin as partners. Flake was alone served with process, and he pleaded to the action, and judgment was rendered against him alone.
It is insisted by the plaintiff in error that as the record shows an appearance by both defendants, the judgment should have been against both or neither. This is the rule as we understand it. Fuller v. Robb et al, 26 Ill. 248, and cases cited.
But what is the evidence of this appearance by both defendants, one of them alone having pleaded?
The record recites that the defendants entered their motion to suppress a certain deposition at the February Term, 1862; that at the June Term, 1863, they entered their motion to suppress a certain other deposition, and at the same term entered their motion for a continuance of the cause. At the September Term, 1863, the record recites that the parties by their attorneys waived a jury and put themselves on the court for trial; and it also recites among the entries of the following day that “the parties herein appearing on yesterday by their attorneys,” &c.
On the strength of the cases of Frazier v. Resor et al., 23 Ill. 89, and Abbott v. Semple, 25 Id. 107, we are compelled to hold there was an appearance by both parties. In the last case we said, when a party appears for a specific purpose, as to show that he is not properly before the court, he should so restrict his motion. If he makes several motions in the cause, not limiting his appearance to a specific purpose, he will be held to have appeared generally for all purposes.
An objection is made...
To continue reading
Request your trial
-
Geohegan v. Union Elevated R. Co.
...to that the recovery of interest depended entirely upon the statute. City of Pekin v. Reynolds, 31 Ill. 529, 83 Am. Dec. 244;Flake v. Carson, 33 Ill. 518;Illinois Central Railroad Co. v. Cobb, 72 Ill. 148;Fowler v. Harts, 149 Ill. 592, 36 N. E. 996;Dady v. Condit, 209 Ill. 488, 70 N. E. 108......
-
Stern v. the People
...is like the former statutes, is not chargeable on an open account, where it has not been liquidated, and a balance agreed upon. Flake v. Carson, 33 Ill. 518. A creditor is not entitled to interest on a balance on an account, unless there has been a promise to pay interest, or an unreasonabl......
-
Wabash Western Ry. v. Brow
... ... Flaid, 90 Ind. 501; Bury v. Conklin, 23 Kan ... 460; Orear v. Clough, 52 Mo. 55; Stanton v ... Havrehill Bridge Co., 47 Vt. 172; Flake v ... Carson, 33 Ill. 518 ... There ... are two kinds of objections to the jurisdiction of a court; ... the one is to its ... ...
-
Stern v. the People
... ... 148.It is not allowable on open account, on balance of account, unless there has been unreasonable delay, nor in actions upon official bonds: Flake v. Carson, 33 Ill. 518; Myers v. Walker, 24 Ill. 135; Gage v. Chicago, 95 Ill. 593.Messrs. WILDERMAN & HAMILL, Messrs. NOETLING & HALBERT, and Mr. R ... ...