Kizer v. Walden

• Decision Date: 25 October 1902
• Citation: 198 Ill. 274,65 N.E. 116
• Parties: KIZER et al. v. WALDEN.
• Court: Illinois Supreme Court

198 Ill. 274

65 N.E. 116

KIZER et al.

v.WALDEN.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, Third district.

Action by James Walden against George Kizer and others. From a judgment of the appellate court (96 Ill. App. 593) affirming a judgment for plaintiff, defendants appeal. Reversed.Craig & Kinzel, for appellants.

Andrews & Vause, for appellee.

This is a special action on the case, based upon section 132 of the Criminal Code, and brought by James Walden, the appellee, in the city court of Mattoon on September 1, 1900, against the appellants, George Kizer, David Kizer, and John Kizer, to recover treble the sums of money claimed to have been lost to the appellants at gaming by Frank Walden, appellee's brother, at various times within the periods specified in the declaration. The plea of the general issue was filed. Upon trial before the court and a jury, the jury returned the following verdict: ‘We, the jury, find for the plaintiff, and we assess his damages at $720.’ Motion for new trial was overruled, and judgment was rendered upon the verdict. An appeal was taken from this judgment to the appellate court, where the same has been affirmed. The present appeal is prosecuted from such judgment of affirmance.

The second count of the amended declaration alleges that within the period between January 1, 1898, and October 25, 1899, the appellants kept a gambling house in Mattoon, where men bet money on games of cards, etc., with appellants; that said Frank Walden on April 21, 1898, and from that time to October 25, 1899, at the gambling house so kept by appellants, at various times engaged in wagering or betting money or other property on said games of cards, etc., with appellants, and did at such times lose and pay to appellants at each time or sitting an amount of money or property exceeding in value the sum of $10, and that the total amounts of money or property so lost or paid at each time or sitting exceeding in amount $10, to the appellants, by said Frank Walden, was $1,500, contrary to the form of the statute in such case made and provided; that said Frank Walden did not, within six months from the time he lost and paid said several sums of money, bring suit to recover the same, or any part thereof, whereby, and by force of the statute, etc., an action has accrued to the appellee to have and recover of and from the appellants, as well for the county of Coles as for himself, the sum of $4,500, being treble the amount in value of the several sums of money lost and paid by Frank Walden to the appellants, to the damage of the plaintiff, the appellee, and the said county of Coles, of $5,000, etc.

At the close of the evidence on both sides, the court gave the following instructions for the appellee: ‘(1) The court instructs the jury to find the issues for the plaintiff, and assess his damages at three times the total amount of the losses of the said Frank Walden to the defendants in sums equal to, or exceeding in amount, the sum of $10 at each time or sitting, as the same may be proved by the evidence.’‘(4) The form of the verdict will be, ‘We, the jury, find for the plaintiff, and we assess his damages at $_____.’' The court refused all the other instructions asked by appellee (plaintiff below), being five in number. The court gave the following instructions for the defendants: ‘(2) The court instructs the jury that the checks introduced in evidence, including those indorsed by George Kizer, are not in themselves evidence that Frank Walden lost money at gaming, but are mere memoranda, and it devolves upon the plaintiff to show by a preponderance of the evidence that he cashed or caused to be cashed each of said checks, and that the money obtained thereon was lost by him at gaming to these defendants in amounts at each time or sitting equal to or in excess of $10, before the plaintiff can recover for any amount claimed to have been lost by Frank Walden on his checks. (3) The court instructs the jury that you are the judges of the weight and credibility of the evidence of the various witnesses in this case. In determining the weight to be given to the testimony of the various witnesses, it is right and proper for you to take into consideration the relationship, if any, of the witnesses to the parties; their interest, if any, in the event of the suit; their conduct and demeanor while testifying; their apparent fairness or bias, if any such appears; their appearance on the stand; the reasonableness of the story told by them,-and to give such credit and weight to the testimony of each witness as, under all the facts and circumstances proven on the trial, such witness, in your judgment, seems to be entitled to.’ The court refused all the other instructions asked by appellants, being 14 in number. After the jury retired, it returned into court for further instructions; and the court, on its own motion, and without notice to the appellants or their counsel, gave the following instruction: ‘(5) The court instructs the jury that when a player enters a room where several games of chance are in progress, and he engages in play, and passess from one game to another, playing now upon one game and then upon another, so long as he thus continues to play it is all one time or sitting, within the meaning of the statute.’

MAGRUDER, C. J. (after stating the facts).

1. Section 132 of the Criminal Code provides that ‘any person, who shall, at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, * * * lose to any person so playing or betting, any sum of money or other valuable thing amounting in the whole to the sum of $10.00, and shall pay or deliver the same or any part thereof, the person so losing and paying or delivering the same, shall be at liberty to sue for and recover the money, goods or other valuable thing, so lost and paid or delivered, or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit or trover, or proceeding in chancery, from the winner thereof, with costs, in any court of competent jurisdiction,’ etc. And said section concludes as follows: ‘In case the person who shall lose such money or other thing, as aforesaid, shall not, within six months, really and bona fide, and without covin or collusion, sue and with effect prosecute for such money or other thing, by him lost and paid or delivered, as aforesaid, it shall be lawful for any person to sue for, and recover treble the value of the money, goods, chattels and other things, with costs of suit, by special action on the case, against such winner aforesaid; one-half to use of the county, and the other to the person suing.’ 1 Starr & C. Ann. St. (2d Ed.) pp. 1299, 1300. We have held that the legal effect of this section of the Criminal Code is to limit the time in which the loser may bring his action to six months, and to bar the bringing of such action after the lapse of that time, and that, after that period has elapsed without a suit by the loser, any other person may sue the winner and recover treble the value of the money, etc., one half to the use of the county, and the other half to the use of the person suing. Holland v. Swain, 94 Ill. 154. The person alleged to have lost the money by gaming to the appellants was Frank Walden, the brother of the present appellee, James Walden, who brought this suit in the court below. Frank Walden could only have recovered the amount of his losses if he had elected to sue the appellants within six months; and, if he had brought such suit within six months, it was his duty to prosecute it in good faith, ‘without covin or collusion.’ The words ‘covin or collusion’ refer to covin or collusion between the person who loses and the person who wins, and not between the loser and the third person suing for treble the amount lost. Cases might arise where, by collusion between the loser and the winner, the former might bring a collusive suit against the latter, not with a view of recovering the amount of the loss, but for the purpose of preventing a suit for treble the amount of the loss by any third person. It is for this reason that the statute prohibits collusion between the loser and the winner. Cole v. Applebury, 136 Mass. 529.

In order to entitle the appellee to recover, it was necessary for him to show that his brother had not brought suit for the money lost within six months. At the close of the evidence introduced by appellee, as plaintiff below, appellants moved the court to exclude plaintiff's evidence and direct the jury to find for the appellants (defendants below), upon the ground that there was no evidence showing that a suit had not been brought by Frank Walden within six months to recover the moneys he may have lost. This motion was overruled, and the defendants took exception. Counsel for appellee (plaintiff below) then moved the court to be allowed to reopen their case to introduce evidence upon this allegation of their declaration. Appellants objected, but their objections were overruled, and leave was given to appellee to reopen his case to introduce such evidence. To this ruling the defendants took exception. Thereupon Frank Walden was recalled, and the following question was asked him, and the following answer was made by him: ‘Q. Mr. Walden, I will ask you if you ever brought a suit, either collectively or separately, against the Kizer Bros. for money lost by you in their gambling house? A. No, sir.’ Upon the cross-examination, counsel for appellants asked Frank Walden the following questions, to which appellee objected, and, the objections being sustained, appellants excepted. The questions so asked upon cross-examination, were as follows: ‘Q. I will ask you if you didn't state to George Nofflett in the presence of two other persons some time on or about March 1, 1900, in Mattoon, that you had been advised by your attorneys to wait until six months...