Foltz v. Hardin
| Decision Date | 31 October 1891 |
| Citation | 139 Ill. 405,28 N.E. 786 |
| Parties | FOLTZ v. HARDIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to appellate court, second district.
Assumpsit by Milton B. Hardin against F. P. Foltz and others upon a promissory note. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant Foltz brings error. Affirmed.
F. S. Murphy and Wm. Davis, for plaintiff in error.
Williams, Lawrence & Bancroft, for defendant in error.
This was an action of assumpsit brought by Milton B. Hardin against F. P. Foltz and others to recover a balance claimed to be due on a promissory note, which was as follows: The note was indorsed by the payees to the plaintiff. Service was had only upon two of the defendants, F. P. Foltz and Davidson Harris. The latter failed to plead, and a default was taken as to him. Foltz demurred to the declaration, the court overruled the demurrer, and he then pleaded the general issue.
The decision of the court in overruling the demurrer is the first error relied upon to reverse the judgment. Conceding that the declaration was insufficient, the plaintiff in error waived the objection raised by the demurrer by pleading over. It is a well-settled rule that pleading over after a demurrer has been overruled is a waiver of the error. McFadden v. Fortier, 20 Ill. 509.
It is next contended that the court erred in permitting the note to be read in evidence, for the reason that there was a variance between the note and the declaration. Had counsel for plaintiff in error objected to the introduction of the note in evidence, on the ground of a variance, no doubt the note would have been excluded, or the plaintiff required to amend his declaration; but no such objection was made. The record shows that when the note was offered in evidence counsel for the defendant objected, upon the following grounds: First, the misjoinder of the parties; second, the summons is improper in this suit. Where there is a variance between the declaration and the instrument sued on, unless objection is made when the instrument is offered in evidence, on the ground of variance, the objection will be regarded as waived. The objection interposed on the trial did not raise the question now attempted to be made. There may have been a misjoinder of the parties, and the summons may have been improper; but those irregularities or defects, if they existed, did not call the attention of the trial court to the fact that there was a variance between the instrument sued on and the one described in the declaration.
It is also insisted at some length in the argument that the evidence was not sufficient to sustain the judgment. That argument was very properly addressed to the appellate court, as that court reviews questions of fact as well as questions of law. But under the statute we are prohibited from reviewing controverted questions of fact. Upon those questions the judgment of the appellate court is conclusive.
The next question presented which it is proper for us to consider is the decision of the court in giving the following instruction for the plaintiff: ‘If you shall believe from the evidence that the defendants, F. P. Foltz, Davidson Harris, Strawther Givens, Samuel McFarland, J. H. Cadwallader, and W. O. Cadwallader, were jointly indebted to plaintiff as principals upon the note sued on; and if you shall in like manner find from the evidence that, after the making and delivery of the note, and before this suit was brought, any one of the principals of the note sued on turned out, to be as collateral security for the payment of said note, any note or other property belonging to himself personally,without the payment of any valuable consideration therefore by his co-obligors,-then, and in that case, the other joint makers of the note sued on acquired no interest or right to control such collateral security, or any part thereof; but the party having so put up and owning such collateral might lawfully, at any time, with consent of the payee or legal holder of the principal note, withdraw the collateral entirely, without in any manner impairing or affecting the right of the legal holder of the principal note to collect the entire amount, if any, remaining unpaid on the original note.’
It appears from the record that the persons named in the instruction as defendants were engaged in...
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...1917, 281 Ill. 264, 118 N.E. 3;Berry v. Turner, 1917, 279 Ill. 338, 116 N.E. 633;McFadden v. Fortier, 1858, 20 Ill. 509;Foltz v. Hardin, 1891, 139 Ill. 405, 28 N.E. 786;Chicago & Alton R. Co. v. Clausen, 1898, 173 Ill. 100, 50 N.E. 680. The defendant also contends that the $300 note given b......
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