Kurrus v. Mayo
| Decision Date | 31 July 1879 |
| Citation | 4 Bradw. 106,4 Ill.App. 106 |
| Parties | JOSEPH A. KURRUSv.SIMEON MAYO ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the City Court of East St. Louis; the Hon. CHARLES T. WARE, Judge, presiding. Opinion filed August 1, 1879.
Mr. E. R. DAVIS, for plaintiff in error; that an instruction which ignored one branch of the defendant's case was erroneous, cited St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256.
The affirmative issue was upon the defendant and he had the right to open and close: Kells v. Davis, 57 Ill. 261; Harvey v. Ellithorpe, 26 Ill. 418; Colwell v. Brower, 75 Ill. 516; 79 Ill. 540.
The verdict is so uncertain and contradictory that it can only be made certain by consent of defendant, or another jury: Frazier v. Laughlin, 1 Gilm. 185; Hinckley v. West, 4 Gilm. 136; Bodine v. Swisher, 66 Ill. 536.
Mr. R. J. HARVEY, for defendant in error; that the misdescription in the bond should have been objected to below, cited Clauser v. Stone, 29 Ill. 114; Gillespie v. Smith, 29 Ill. 473; Stone v. Great Western Oil Co. 41 Ill. 86; Conway v. Case, 22 Ill. 139; Davis v. Ransom, 26 Ill. 100; Curtis v. Mars, 29 Ill. 508; Sargeant v. Kellogg, 5 Gilm. 281; Buntain v. Bailey, 27 Ill. 410.
Execution of the bond should be denied under oath: Rev. Stat. 779; Home Flax Co. v. Beebe, 48 Ill. 138; Griswold v. Trustees, 26 Ill. 41.
The bond was subject only to such equities as existed at time of assignment: Safford v. Miller, 59 Ill. 205; Carr v. Waugh, 28 Ill. 418.
Any adjustment after notice of assignment was void as to the assignee: Chapman v. Shattack, 3 Gilm. 49.
In support of instruction as to lack of authority in the attorney to agree to dismissal: People v. Sanborn, 2 Scam. 123; Nolan v. Jackson, 16 Ill. 272; Trumbull v. Nicholson, 27 Ill. 149; Vickery v. McClellan, 61 Ill. 311; Wadhams v. Hieland, 67 Ill. 278.
Not being a party to the garnishment proceeding, the assignee is not bound by that judgment: Cooper v. McClun, 16 Ill. 435; Allen v. Watt, 79 Ill. 284; Heinrod v. Bank, 65 Ill. 435; Hodson v. McConnell, 12 Ill. 170; Carr v. Waugh, 28 Ill. 418.
Plaintiff's fourth instruction, being considered with others qualifying it, was not erroneous: Springdale v. Smith, 24 Ill. 480; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Warren v. Dixon, 27 Ill. 115.
If substantial justice has been done, the verdict will not be disturbed: Dishon v. Schorr, 19 Ill. 59; Burling v. Ill. Cent. R. R. Co. 85 Ill. 18; McConnell v. Kibbe, 33 Ill. 176; Curtis v. Sage, 35 Ill. 22; Coursen v. Ely, 37 Ill. 338; Root v. Curtis, 38 Ill. 192; Boynton v. Holmes, 38 Ill. 59; Potter v. Potter, 41 Ill. 80; Rankin v. Taylor, 49 Ill. 451.
An instruction that does not mislead is no ground for reversal: Pierce v. Hasbrouck, 49 Ill. 23; Schlencker v. Risley, 3 Scam. 483; Thorn v. Watson, 5 Gilm. 26.
As to the right to open and close: Harvey v. Ellithorpe, 26 Ill. 418; Mason v. Broom, 24 Geo. 211; Ayer v. Austin, 6 Pick. 225.
General issue or nil debet goes to the entire declaration: Puterbaugh's Prac. 589; Van Dusen v. Pomeroy, 24 Ill. 289; Huddle v. Martin, 54 Ill. 258; Vicths v. Hagg, 8 Iowa, 163.
An irregularity in the verdict is not sufficient to set it aside: R. R. I. & St. L. R. R. Co. v. Steele, 69 Ill. 253; Gleason v Henry, 71 Ill. 109.
This was an action in debt, brought by defendant in error against plaintiff in error and John Peter, Fritz Sturner, Christian Lutt and Valentine and Agnes Eustachie, upon an injunction bond given by the Eustachies, as principals, with the other obligors as their sureties, to enjoin the collection of a judgment in favor of Mayo against the Eustachies, in a proceeding to enforce a mechanic's lien, which judgment Mayo was seeking to collect through a sale of the property, which sale was about to be made by Koerner, as Master in Chancery. The injunction was dissolved, the bill being dismissed by Eustachies, the complainants therein.
The Eustachies pleaded specially, first, that they dismissed their bill in pursuance of an arrangement made with Mayo, who also had an injunction suit pending against them and certain insurance companies, which companies had issued policies of insurance upon the house in controversy, which house had burned, to the effect that both suits for injunction should be dismissed, and that there should be no liability on the bonds given in either; second, that they had been garnisheed at the April term, 1875, of the St. Clair Circuit Court by the Eau Clair Lumber Co., in respect to the said judgment in the said mechanic's lien case; and that judgment had been rendered against them as garnishees of said Mayo for $1,019.85, and that execution had been issued against them on said judgment in the garnishment proceedings.
Defendants, Peter Sturner, Lutt and Kurrus, pleaded nil debet, and gave notice that under that plea they would prove as a defense the matters set forth in the two special pleas of their co-defendants, the Eustachies. The record states that the court sustained a demurrer to the first plea filed by Eustachie, which plea does not appear in the record, but is said by counsel, in their brief, to have been nil debet.
The plaintiff replied, first, that there was no such agreement as that set out in the first special plea of Eustachie; second, that the attorney of Mayo had no authority to make such an arrangement; third, as to the second special plea, that on the 25th of May, 1875, before the garnishee proceedings were instituted, the said Mayo had assigned his judgment against the Eustachies, and his injunction bond to Eldred & Co., and that Eustachie, on the same day, had notice of the assignment; fourth, that Eldred & Co. were not parties to the garnishee proceedings. Eustachie joined issue upon the first replication; and as to the second replication, rejoined that the attorney of Mayo had authority to make the agreement, and issue was joined on this by the plaintiff.
As to the third replication, they rejoined that Mayo did not assign his judgment and injunction bond to Eldred, and that they had no notice of such assignment, and issue was joined on this. As to the fourth, they rejoined that Eldred had notice of the garnishee proceedings to which plaintiff demurred, but it does not appear in the record that the court passed upon the demurrer. The case was tried by jury, resulting in a verdict for the plaintiffs for $1,260.20. Objection is made that there was a variance between the date of the bond as alleged in the declaration and that proved, but this is explained by the amended or supplemental record filed at the instance of defendants in error. The main questions of fact upon the pleadings, as they were made up, seem to be: When was Mayo's judgment assigned to Eldred? Was this assignment bona fide? Upon what terms did Mayo dismiss his injunction suit? And was Eldred bound by the alleged agreement releasing the bond? The evidence tended to show that Mayo did assign his judgment and bond to Eldred & Co. on the 25th of May, 1875, to secure a debt then due from Mayo to Eldred. R. J. Harvey, acting as the attorney for both Mayo and Eldred, he drawing up the assignment and entering a credit upon the notes held by Eldred, who lived in Chicago, and was not present or cognizant of the proceedings and that the Eustachies were on the same day notified of the assignment; that on the 26th of May, garnishee proceedings were instituted at the instance of Eau Clair Lumber Company, creditors of Mayo, against Eustachie, and that on...
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