Kinkade v. Gibson
| Decision Date | 20 April 1904 |
| Citation | 70 N.E. 683,209 Ill. 246 |
| Parties | KINKADE et al. v. GIBSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Richland County; P. A. Pearce, Judge.
Ejectment by J. M. Kinkade and others against Emily J. Gibson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.Levi Clodfelter, for appellants.
Allen & Fritchey and H. G. Morris, for appellees.
This is a suit in ejectment brought by appellants, the heirs at law of James Kinkade, deceased, in the circuit court of Richland county, against the appellees. There was a plea of not guilty, and an affidavit that the parties claimed title from a common source. Upon a trial before the judge without a jury, the issue was found for the defendants, and judgment was rendered against the plaintiffs for costs.
Upon the back of the transcript a paper has been pasted, on which there appears what was evidently intended as an assignment of errors, but it is not in the form of such an assignment, and is not signed. The assignment of errors is the pleading of the appellant or plaintiff in error, and must be signed by him or his attorney. 2 Ency. of Pl. & Pr. 960; 2 Cyc. 1002. If a motion had been made to dismiss the appeal for want of a proper assignment of errors, the appeal would have been dismissed. There was no motion to dismiss the appeal, and, the cause having been submitted for decision, we have concluded to consider the case as presented by counsel.
James Kinkade, at the time of his death, on August 23, 1893, was the owner of certain premises in Richland county, and plaintiffs are his heirs at law. At the January term, 1884, of Richland county, James S. McCartney, for the use of James McWilliams, recovered a judgment in assumpsit by default against said James Kinkade for $410.90 and costs. At the January term, 1891, that judgment was revived by default on scire facias against said James Kinkade. No execution was issued after the revivor before the death of James Kinkade, on August 23, 1893. After his death, execution was issued on October 24, 1894, by virtue of which the sheriff levied upon and sold said lands to James McWilliams, and, the lands not being redeemed, a deed was executed to McWilliams, and he conveyed to Emily J. Gibson, one of the defendants.
There are several objections to rulings on the admission of evidence. Plaintiffs objected to the introduction of the original judgment for the reason that it did not recite service of summons on James Kinkade. The objection was overruled, and in this there was no error, for the reason that the summons was in evidence, and showed personal service on Kinkade more than 10 days before the first day of the term of court at which the judgment was rendered.
The defendants offered in evidence an execution dated June 30, 1884, running in the name of James S. McCartney, for the use of James McWilliams, against James Kinkade. The execution was objected to, and the objection overruled. In this the court erred. An execution must conform to the judgment. Hobson v. McCambridge, 130 Ill. 367, 22 N. E. 823. And this execution did not follow the judgment in an essential particular, but appeared to have been issued on a different judgment. The case must be treated as though the first execution issued on the judgment was on August 24, 1894, after the death of the judgment debtor. But in our opinion, neither the rights of the parties, nor the result of the suit, was affected by the erroneous ruling.
The judgment on the scire facias was objected to on the specific ground that it did not affirmatively show service of the writ upon the defendant. The writ had been admitted in evidence, with a return thereon showing it had been duly served, and the specific objection made was properly overruled. The judgment is exceedingly informal, and there is a variance between the writ and the judgment in the name of the nominal plaintiff; but the variance was not made a ground of the objection, and there was no ruling on that subject to be reviewed. The purpose of a revivor is to renew a dormant judgment, and to give it its original force as a lien on the judgment debtor's property, and the proper form of the judgment is to award execution for the amount of the original judgment, with interest from its rendition, and costs. We think that this judgment, although not in the...
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Merrifield v. Western Cottage Piano & Organ Co.
...erroneous, as the execution must conform to and follow the judgment. Hobson v. McCambridge, 130 Ill. 367, 22 N. E. 823;Kinkade v. Gibson, 209 Ill. 246, 70 N. E. 683; 1 Freeman on Executions (3d Ed.) § 42; Herman on Executions, § 56; 8 Ency. of Pl. & Pr. p. 418. The appellant contends that t......
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Haj v. American Bottle Co.
...should have been personal’-citing Chicago & Alton Railroad Co. v. Smith, supra. That decision was not departed from in Kinkade v. Gibson, 209 Ill. 246, 70 N. E. 683. The case arose under the same statute requiring notice to the administrator, executor, or heirs, and the court said: ‘The sta......
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Westberg v. Barcroft
...12-157 allows for the enforcement of the judgment lien against the Barrington property. ¶ 45 Darlene's reliance upon Kinkade v. Gibson, 209 Ill. 246 (1904), and Woods, 13 F.2d 572, is likewise misplaced, as neither case involved a joint tenancy interest. Both cases addressed the enforcement......