Lawrence v. Jarvis

• Decision Date: 30 April 1863
• Citation: 32 Ill. 304,1863 WL 3186
• Parties: GEORGE P. LAWRENCEv.JOHN P. JARVIS AND CAROLINE JARVIS.
• Court: Illinois Supreme Court

32 Ill. 304

1863 WL 3186 (Ill.)

GEORGE P. LAWRENCE

v.JOHN P. JARVIS AND CAROLINE JARVIS.

Supreme Court of Illinois.

April Term, 1863.

ERROR to Circuit Court of Peoria County.

Debt by defendants in error against plaintiff in error.

The facts are sufficiently stated by the court. The first, second and third instructions asked by defendants, and referred to by the court in their opinion, are substantially as follows: The first instruction stated what the plaintiff sought to recover, and then set forth the substance of defendants' sixth plea (which is stated in full by the court in their opinion), and closed by stating, that the truth of these facts was not denied by the plaintiff, but stood admitted upon the records, and must be taken as true by the jury in determining whether the judgment was fraudulently obtained. The second instruction was, that if the jury believed that the judgment upon which this suit was brought was obtained by the plaintiff fraudulently, they should find for the defendant. The third, stated that unless the plaintiffs had proved that said court of common pleas had jurisdiction of the person of the defendant, said court had no authority to render said judgment, and the jury in that case should find for defendant; that the plaintiff alleged that defendant employed an attorney to appear in said cause, and unless the plaintiff proved to the satisfaction of the jury that the defendant did employ an attorney in said cause, then said judgment was void, and the jury should find for defendant.

H. Grove, for plaintiff in error.

M. Williamson, for defendants in error.

BREESE, J.

This was an action of debt on a judgment record from the common pleas of Coshocton county, in the state of Ohio. The defendant pleaded nil debet, nul tiel record; that the court of Coshocton county granted a new trial; that said court had no jurisdiction of the person of the defendant; that the judgment was procured by the fraud of the plaintiff, and the following plea:

And for further plea, defendant says actio non, because he says that the only claim or demand the said plaintiffs or either, have or ought have, against the defendant, is for work, labor and services, and salary of the said plaintiff, Caroline Jarvis, done, performed and due to her, while sole and while her name was Caroline Shriever, and which was done, performed and due prior to November 30, 1853, and the defendant avers, that on the said 30th day of November, A. D. 1853, at the town of Newcastle, in the state of Ohio, the defendant settled and accounted with the said Caroline Shriever, while she was sole and unmarried, and paid to her the sum of one hundred dollars, which said sum of money, the said Caroline then and there accepted, and received in full payment and satisfaction of all debts, dues and demands, against the defendant, and then and there, said Caroline executed and delivered to the defendant, as evidence of such payment and satisfaction, the receipt in words and figures following:

NEWCASTLE, Nov. 30, 1853.

Received of George P. Lawrence, one hundred dollars, in full of all debts, dues and demands up to this date, November 30, 1853.

+---------------------------+
                ¦[$100.]¦CAROLINE SHRIEVER. ¦
                +---------------------------+
                

Newcastle, November 30, 1853.

Attest: ERASTUS LAWRENCE. And the defendant avers, that afterwards, and on or about the year 1855, the said Caroline Shriever intermarried with the plaintiff, John P. Jarvis, and after said marriage, and on or about the 26th day of July, 1856, said plaintiff brought the suit and recovered the judgment in plaintiff's declaration mentioned, for the same labor, services, dues and demands in said receipt specified; the plaintiffs then and all the time well knowing that the defendant had fully paid and satisfied the said Caroline for all the said services, wages, salaries and moneys. And the defendant avers that at the time said suit was commenced, for and during the two years prior thereto, and from thence hitherto, the said defendant was and is a citizen and inhabitant of the state of Illinois, and was not an inhabitant of the said state of Ohio, and that no process or summons or citation was ever served upon him to appear in said court, and that he never authorized any attorney, or any agent, to appear for him in said court; that such judgment is fraudulent as to him, and rendered by said court, without having any jurisdiction of his person, and this he is ready to verify.

The plaintiffs joined issue on all the pleas but the last, to which they put in two replications; first, that the court rendering the judgment had jurisdiction of the person of the defendant, and that defendant had notice of the suit and employed an attorney of that court to appear for him, and who did appear for him. Second, that the judgment was not fraudulently obtained, and issues joined.

To maintain the issues on the part of the plaintiffs, they introduced the record of the proceedings and judgment in the Coshocton court of common pleas, duly certified, by which it appeared that a suit by petition, duly sworn to, had been commenced by these plaintiffs against the defendant, for the work, labor and services of the wife, whilst she was sole and unmarried; that an answer was put in by C. C. Leonard, attorney for the defendant, and a motion made and sustained to strike out the answer. The cause was tried by a jury at the December term, 1860, who found a verdict for the plaintiffs for $317, for which judgment was rendered, together with costs, taxed at $82 36/100. The defendant demanded a second trial of the cause, “and the court being satisfied that he is entitled to such second trial, it is accordingly granted, and the undertaking to be entered into for such second trial, by said defendant, is fixed in the sum of four hundred dollars.”

The defendant objected to this record as evidence of the debt, on the ground that it appeared on its face that a new trial had been granted.

To obviate this objection, the plaintiffs offered in evidence a certified copy of an act of the general assembly of the state of Ohio, which provides, by section 1, that a second trial may be granted when the court has original jurisdiction, and in which an issue of fact may be joined;

By section 2, that any person desiring a second trial, as provided in section 1, may have such second trial on entering into an undertaking to the satisfaction of the clerk, in a sum to be fixed by the court, conditioned to abide and perform the order of the court, and pay all moneys, costs and damages;

By section 3, that a docket shall be made of said second trial, in which shall be entered all cases in which the right to such second trial shall be perfected, etc.;

By section 4, that either party shall have the right to except to the opinion of the court, on a motion to direct a nonsuit, to arrest the testimony from the jury, and also in all cases for a new trial.

This was all the evidence offered by the plaintiffs, whereupon the defendant offered in evidence the receipt set out in his plea, which was excluded by the court, and exception taken.

The jury found for the plaintiffs, a motion for a new trial was made and overruled, and exception taken, and the case brought here by writ of error.

The following are the errors assigned:

1. The court of common pleas of Coshocton county had no...