Heiple v. Lehman

• Decision Date: 05 December 1934
• Docket Number: No. 22327.,22327.
• Citation: 192 N.E. 858,358 Ill. 222
• Parties: HEIPLE v. LEHMAN et al.
• Court: Illinois Supreme Court

358 Ill. 222

192 N.E. 858

HEIPLE

v.LEHMAN et al.

No. 22327.

Supreme Court of Illinois.

Oct. 17, 1934.

Rehearing Denied Dec. 5, 1934.

Action by Rae C. Heiple, as receiver of Henry Denhart & Co., against Edward Lehman and another. Judgment for defendants was affirmed by the Appellate Court (272 Ill. App. 513), and the plaintiff appeals on a certificate of importance.

Affirmed.Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Woodford County; Stevens R. Baker, Judge.

George W. Hunt and J. Edward Radley, both of Peoria, for appellant.

Ridgely & Ridgely, of Eureka (Ben C. Leiken, of Eureka, of counsel), for appellees.

ORR, Justice.

Appellant, Rae C. Heiple, receiver of Henry Denhart & Co., obtained judgment by confession in the circuit court of Woodford county against Edward Lehman and Lydia King, appellees, for the sum of $856. On motion of appellees leave to plead was given, and upon the pleadings as made up judgment was rendered in their favor. Upon appeal to the Appellate Court for the Second District this judgment was affirmed. The cause comes here on a certificate of importance.

On March 1, 1929, the State Bank of Henry Denhart & Co. was engaged in the general banking business. It made a loan of $1,000 to appellees, taking their note for that amount, payable on March 1, 1930. On April 1, 1930, $200, principal and accrued interest, was paid on the note. On April 11, 1930, the bank was closed by the auditor of public accounts and appellant was appointed receiver. Lydia King had on deposit to her credit, individually, the sum of $1,965.01, upon which a 10 per cent. dividend had been paid, leaving a balance due upon her deposit of $1,768.41. Appellant took judgment by confession against appellees for the sum of $856 on March 30, 1931. This judgment was opened, and on their motion leave was given them to plead. Three pleas were filed. The first special plea, after the plea of general issue, averred that the debt represented by this note was the primary obligation of Lydia King, and that she was the principal maker thereof, and that Lehman was obligated on the note as a surety only, and then averred the set-off. Replication to this plea denied the relationship of principal and surety on the part of appellees. Demurrer to the replication was sustained. The second special plea alleged that the bank deposit of Lydia King was a set-off against said note, and that there was due from the bank to her the sum of $1,768.41, a sum exceeding the amount due upon the note in question, and offered to set off or allow the plaintiff a sufficient sum to pay the principal and interest of the note. Replication was filed to this plea, denying the right of appellees to urge this defense. Demurrer to this replication was sustained. Appellant elected to abide the pleadings, and judgment was entered in favor of appellees.

It is here urged as grounds for reversal, first, that the individual deposit of Lydia King is not a proper item of set-off against a claim upon the note of appellees; second, that it was error to sustain demurrers to the replications to the special pleas; and, third, that the demurrer to the replication should have been carried back to the second special plea. It appeared that appellant filed a demurrer to the second special plea; that later the demurrer was withdrawn and replication filed; that when demurrer was interposed by appellees to the replication to the second special plea a motion was made to carry the demurrer back to the plea. The action of the trial court in refusing to carry the demurrer back was proper. By withdrawing the demurrer appellant abandoned the same, and complaint can not now be made of the insufficiency of the special plea. Walker v. Welch, 14 Ill. 277.

The note in this suit is the joint and several obligation of the signers, and appellees contend that one of the signers of a joint and several obligation can set off against the obligations the amount due him or her from the obligee. The statute (Smith-Hurd Ann. St. c. 110, § 47) provides: ‘The defendant in any action now pending or hereafter brought upon any contract or agreement, either express or implied,...