Jansen v. Grimshaw

• Court: Supreme Court of Illinois
• Writing for the Court: CRAIG
• Citation: 17 N.E. 850,125 Ill. 468
• Decision Date: 15 June 1888
• Parties: JANSEN v. GRIMSHAW.

125 Ill. 468
17 N.E. 850

JANSEN
v.
GRIMSHAW.

Supreme Court of Illinois.

June 15, 1888.

Appeal from appellate court, Third district.

A judgment against one member of a firm for a debt due from the firm constitutes a bar to a recovery against the other members. Wann v. McNulty, 2 Gilman, 355;Thompson v. Emmert, 15 Ill. 415;Gray v. Gillilan, Id. 453; King v. Hoare, 13 Mees. & W. 494; Peters v. Sanford, 1 Denio, 224;Smith v. Black, 9 Serg. & R. 142;Downey v. Bank, 13 Serg. & R. 288;Sloo v. Lea, 18 Ohio, 279;Robertson v. Smith, 18 Johns. 459, 9 Amer. Dec. 227; Ward v. Johnson, 13 Mass. 148;Moale v. Hollins, 11 Gill & J. 11;Taylor v. Claypool, 5 Blackf. 558;Mason v. Eldred, 6 Wall. 231;Mitchell v. Brewster, 28 Ill. 163. And it is held that the entry of a nolle prosequi as to a defendant who pleads the general issue, in an action ex contractu against several, discharges all. Tolman v. Spaulding, 3 Scam. 13. Judgment must be taken against all who are served or none. The cause of action is merged in the judgment; those not included in it are released, and the judgment is a complete bar to any further recovery. Gribbin v. Thompson, 28 Ill. 61;Kimmel v. Shultz, Breese, 169; Russell v. Hogan, 1 Scam. 552;Hoxey v. Macoupin Co., 2 Scam. 36;McConnel v. Swailes, Id. 571; Tolman v. Spaulding, 3 Scam. 13;Frink v. Jones, 4 Scam. 170;Wight v. Meredith, Id. 360; Wight v. Hoffman, Id. 362; Moale v. Hollins, 33 Amer. Dec. 684; Loney v. Bailey, 43 Md. 18;Schuler v. Israel, 27 Fed. Rep. 851; People v. Harrison, 82 Ill. 84;Byers v. Bank, 85 Ill. 423;Felsenthal v. Durand, 86 Ill. 230;Faulk v. Kellums, 54 Ill. 188;Goodale v. Cooper, 6 Bradw. 81;Kimball v. Tanner, 63 Ill. 519. Even where the obligation is both joint and several, if the defendants are sued jointly, the rule as to joint contracts will govern, and separate judgments cannot be rendered. Gould v. Sternburg, 69 Ill. 531. The court had no power to set aside the judgment after the term at which it was rendered. Therefore the motion of plaintiff to vacate and set aside said judgment should have been overruled, and defendant's cross-motion to strike the cause from the docket should have been sustained. Garner v. Crenshaw, 1 Scam. 143;Ryder v. Twiss, 3 Scam. 4;Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Messervey v. Beckwith, Id. 452; McKindley v. Buck, 43 Ill. 488;Knox v. Bank, 57 Ill. 330;Lill v. Stookey, 72 Ill. 495;Coursen v. Hixon, 78 Ill. 339;Becker v. Sauter, 89 Ill. 596;Blake v. Miller, 8 N. E. Rep. 828; Baptist v. Transportation Co., 29 Fed. Rep. 180. A former judgment rendered for the same cause of action may be given in evidence under the general issue, and when thus given will bar further record. Judgment will be held conclusive evidence under the general issue. Where a new note is given in lieu of an old one, and the old one is surrendered and canceled, the old note is no longer in force for any purpose, and will be regarded as paid. Wickenkamp v. Wickenkamp, 77 Ill. 96;Wilkinson v. Stewart, 30 Ill. 48;Yates v. Valentine, 71 Ill. 643;Tucker v. Conwell, 67 Ill. 552;Morrison v. Smith, 81 Ill. 221;Fridley v. Bowen, 5 Bradw. 191.

The giving of a promissory note in lieu of another, unless intended and understood by the parties as a payment, is no payment and does not discharge the maker from liability on the first note. Hill v. Marcy, 49 N. H. 268;Thompson v. Briggs, 28 N. H. 40;Yates v. Valentine, 71 Ill. 643. A retiring partner is liable for debts contracted by the firm after his retirement with those who have had prior dealings with the firm, unless they have had actual notice of his retirement. Warren v. Ball, 37 Ill. 80;Meyer v. Krohn, 114 Ill. 580, 2 N. E. Rep. 495. A party cannot allege errors which relate exclusively to other parties, who are not complaining and who are not before the court. Clark v. Marfield, 77 Ill. 258;Henrickson v. Van Winkle, 21 Ill. 274;Horner v. Zimmerman, 45 Ill. 14;Cromine v. Tharp, 42 Ill. 121;Richards v. Greene, 78 Ill. 526. When a state court has ordered a removal of a cause to the federal court, although erroneously, its jurisdiction is at an end until restored by action of the federal court; and in such case, on the order of the federal court remanding the case, the jurisdiction of the latter court reattaches and it may proceed therewith. Dill. Rem. Causes, (3d Ed.) 406, § 87; Thacher v. McWilliams, 47 Ga. 306; Insurance Co. v. Francis, 52 Miss. 457.

[125 Ill. 471]Carter & Govert, for appellant.

[125 Ill. 473]

[17 N.E. 851]

John H. Williams, for appellee.

CRAIG, C. J.

[125 Ill. 469]This was an action of assumpsit brought by Cornelia B. Grimshaw against Albert W. Jansen, Frederick G. Jansen, and Charles C. Jansen, to recover the amount of a promissory note, executed by the defendants under the firm name of F. W. Jansen & Son, on the 1st day of February, 1881. The three defendants, who were brothers, were engaged in business in Quincy, under the firm name of F. W. Jansen & Son, and on that day they borrowed from the plaintiff, Cornelia B. Grimshaw, $2,000, and executed and delivered her a promissory note, signed, ‘F. W. JANSEN & SON,’ for the amount due in two years, with interest at the rate of 7 per cent. per annum. In November, 1881, Albert W. Jansen withdrew from the firm, and notice of his withdrawal was published in a newspaper published in Quincy, but the plaintiff never saw the notice, and the evidence tends to show that she had no knowledge of any change in the firm. After Albert W. Jansen withdrew from the firm, the business was continued by Charles C. and Frederick G. Jansen, under the same firm name, F. W. Jansen & Son, until February, 1866, when they made an assignment. When the note became due the interest was paid, and a new note executed, bearing the date February 1, 1883, due in two years, for $2,000, with interest at 8 per cent. per annum, signed, as was the old one, ‘F. W. JANSEN & SON.’ When the new note was received, the old one was

[17 N.E. 852]

surrendered. The interest seems to have been regularly paid until the firm failed and assigned, as stated before, in February, 1886. The declaration contained one court on the old note, and also a count on the new note, and the common counts. The defendant Albert W. Jansen pleaded the general issue and several special pleas, in which he denied the execution of the note dated February 1, 1883, upon which issue was joined. [125 Ill. 470]He also denied that he was a member of the firm when the note was executed. To this it was replied that Albert W. Jansen had, previous to the execution of the note, been a partner in the firm of F. W. Jansen & Son, and that while he was such partner plaintiff had given credit to the firm, and at the time the note of February 1, 1883, was executed and delivered she had no notice of his withdrawal from the firm, and that she accepted the note believing that he was still a member of the firm. The...