Merrifield v. Western Cottage Piano & Organ Co.

• Decision Date: 19 February 1909
• Citation: 87 N.E. 379,238 Ill. 526
• Court: Illinois Supreme Court
• Parties: MERRIFIELD v. WESTERN COTTAGE PIANO & ORGAN CO. et al.

238 Ill. 526

87 N.E. 379

MERRIFIELD

v.WESTERN COTTAGE PIANO & ORGAN CO. et al.

Supreme Court of Illinois.

Feb. 19, 1909.

Appeal from Appellate Court, Second District, on Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.

Action by Mary C. Merrifield against the Western Cottage Piano & Organ Company, L. W. Merrifield, and T. W. Burrows. From a judgment of the Appellate Court affirming a judgment of the lower court allowing an amendment to the execution, defendant T. W. Burrows appeals. Reversed.Jarvis R. Burrows, Eddy, Haley & Wetten, and Butters & Armstrong, for appellant.

McDougall & Chapman, for appellee.

At the June term, 1907, of the circuit court of La Salle county, appellee Mary C. Merrifield obtained a judgment by default in an action of assumpsit against the Western Cottage Piano & Organ Company, L. W. Merrifield, and T. W. Burrows for $20,084.49. June 29th, eight days after the judgment was entered, the defendant T. W. Burrows entered a motion to set aside the default and open up the judgment and for leave to plead. After hearing the motion the court ‘orders that execution herein be and the same is hereby restrained, and grants leave to said defendant to plead, and orders that the judgment entered herein stand as security for the debt.’ Burrows filed a plea of general issue with notice of special matters to be relied on, and an affidavit that he had a good defense upon the merits as set forth in the notice as to special matters. At the October term, 1907, counsel for Burrows gave notice that on the next day leave would be asked to file an additional plea for him, and counsel for said company gave notice that at the same time leave would be asked to file a plea for the defendant company; but the record fails to show that any such motion was made on behalf of said company. The next day defendant Burrows moved for leave to withdraw the notice under the general issue and for leave to file special pleas. This motion having been granted, defendant Burrows filed three special pleas, and appellee filed a replication. February 8, 1908, an execution was issued on this judgment against the company and L. W. Merrifield only, and delivered to the sheriff of La Salle county. February 11, 1908, at the January term, the attorneys for said company moved to recall and quash the execution, and at the same time counsel for appellee made a cross-motion to ‘set aside the order entered herein on June 29, 1907, setting aside the default as to the defendant T. W. Burrows, opening up the judgment and granting leave to said defendant to plead.’ February 18th the court sustained the motion made by appellee to vacate the order setting aside the default as to T. W. Burrows and overruled the motion to recall the execution. Thereupon defendants, and each of them, prayed an appeal from the ruling of the court to the Appellate Court for the Second District, which said appeal was granted on their filing their appeal bond in 30 days in the sum of $200, to be approved by the clerk. The record shows that February 21, 1908, the defendants filed their bond in the circuit court in said last-mentioned appeal, and the bond was approved by the clerk. Thereafter, on February 25, 1908, appellee moved the court to amend the execution so as to make it conform to the judgment by inserting the name of Thomas W. Burrows. This motion was allowed by the court and an order entered accordingly. Burrows excepted to the ruling of the court and prayed an appeal to the Appellate Court for the Second District from this order amending the execution, which was allowed on his filing a bond in 30 days in the sum of $200. This bond was filed March 6, 1908, and approved by the circuit clerk. The record is not entirely clear as to the steps thereafter taken. Apparently, on March 17, 1908, a writ of error was sued out of the Appellate Court in this cause bringing up the entire transcript, including both of the orders appealed from, and afterwards one or both of the appeals were, on motion, consolidated with the writ of error. The Appellate Court in its opinion states there were two writs of error, and that said court had filed an earlier opinion covering the entire case as consolidated, and that after the first opinion was filed defendant Burrows practically abandoned the consolidation by petitioning for a rehearing on that branch of the case which decided the motion of February 18th, setting aside the default formerly entered and overruling the motion to recall the execution, and at the same time appealing from that part of the decision of the Appellate Court which affirmed the decision of the lower court entered February 25th, allowing the amendment to the execution. The Appellate Court granted a certificate of importance as to only one of the two causes theretofore consolidated, so that by this appeal now before us the only question for decision is the legality of the order of February 25, 1908, allowing the amendment of the execution by adding the name of defendant T. W. Burrows. The appeal was allowed only as to T. W. Burrows.

CARTER, J. (after stating the facts as above).

Appellant contends that the stay order entered by the trial court June 29, 1907, applied to all the defendants in that court, while appellee contends that it clearly applied only to defendant T. W. Burrows, and the Appellate Court so held. If the order be construed as setting aside the default only as to defendant Burrows, then it was erroneous, as the default should have been set aside as to all the defendants or none. Gould v. Sternburg, 69 Ill. 531, and cases cited; Fuller v. Robb, 26 Ill. 246. It is conceded that the execution as issued on February 8, 1908, against two of the defendants below, and not against the third defendant, Burrows, was 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 the appeal to the...