Jansen v. Grimshaw

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

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.

Carter & Govert, for appellant.

John H. Williams

, for appellee.

CRAIG, C. J.

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 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. 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 defendant Albert W. Jansen also interposed a plea, which in substance declared that plaintiff accepted and received the promissory note of February 1, 1883, from Charles C. and Frederick G. Jansen in full satisfaction of all indebtedness sued for, except the note of February 1, 1883. To this the plaintiff in substance replied that she did not accept the second note in full satisfaction of such indebtedness alleged in the plea. The other two defendants filed pleas to the declaration; but as they were subsequently withdrawn, it will not be necessary to notice them here. The issues having been made up, and the cause being ready for trial, when it should be reached on a call of the docket, on the 5th day of April, 1886, the defendant Albert W. Jansen, being a non-resident of the state, filed a petition for the removal of the cause to the federal court. Two days later, on April 7th, the other defendants, Charles C. and Frederick G. Jansen, withdrew their pleas. Judgment by default was therefore rendered against them, and, on motion of the plaintiff, her damages were assessed, and judgment entered for $2,029.74, and costs. At the same time an order was entered sustaining the motion of defendant Albert W. Jansen to remove the cause to the federal court, and an order was entered that ‘this cause be removed to the circuit court of the United States for the Southern district of Illinois.’ On the 15th day of May, following, court adjourned for the term. On the 7th day of June a transcript of the cause was filed in the circuit court of the United States. On the 21st of June, 1886, the circuit court of Adams county again convened, and adjourned for the term on the 2d day of July. On the 15th day of October, 1886, the circuit court of the United States, on motion of plaintiff, remanded the cause to the circuit court of Adams county. On the 25th day of October, which was the first day of the October term of the Adams circuit court, plaintiff entered a motion to vacate the judgment rendered against Frederick G. and Charles C. Jansen at the previous March term, and the three defendants entered a cross-motion to strike the cause from the docket. The court sustained plaintiff's motion to vacate the judgment, and overruled defendant's cross-motion. After wards the defendants Charles C. and Frederick G. Jansen, by leave of court, filed a plea of former recovery, setting up the judgment recovered at the March term as a bar to this plea. Plaintiff replied there was no such judgment remaining in full force and effect, and prayed that the same may be inquired of by the court by inspection of the record, upon which issue was joined. On the 12th day of November, 1886, a trial was had before a jury, resulting in a verdict and judgment against all the defendants for $2,125.75. On the appeal of Albert W. Jansen alone, the judgment was affirmed in the appellate court. To reverse the judgment of the appellate court, he has appealed to this court.

It is first contended by appellant that the circuit court erred in sustaining the motion of plaintiff made at the October term, 1886, to vacate the judgment rendered against appellant's co-defen...