Nickerson v. Rockwell

Decision Date30 September 1878
CourtIllinois Supreme Court


APPEAL from the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding.

The appellee, Rockwell, holding two promissory notes against appellant, both past due, commenced, on the same day and at the same time, two suits before a justice of the peace against Nickerson upon said notes, one suit upon each note, and the justice numbered said suits upon his docket in the order in which the writs were actually written, although otherwise they were commenced at the same time. In the suit bearing the lowest docket number, judgment was rendered by said justice in favor of said Rockwell and against said Nickerson for $145.03, and costs. It was appealed to the circuit court of Cook county, and, subsequently, the appeal was dismissed for want of prosecution, with a procedendo and ten dollars damages, and said judgment is still in full force and effect. In the suit before said justice bearing the highest docket number, judgment was rendered by default for $100, and costs, and by said Nickerson appealed to the circuit court of Cook county, and there numbered 10,482, and is the case at bar. The other appeal was numbered 10,483, in said circuit court, and was disposed of, as aforesaid, previous to the trial of the case at bar.

Upon this agreed state of facts this case was submitted to the court, and counsel for the defendant, Nickerson, thereon moved the court that said cause be dismissed at the plaintiff's costs, on the ground that the plaintiff must consolidate all claims which he has against the defendant at the time of the commencement of the suit, which are of such a nature as to be consolidated, and must then sue in some court of competent jurisdiction; that the notes in said two suits should have been consolidated in one claim; that the plaintiff had neglected to do this, and that he was thereby forever barred from suing to collect the note in question in this case. The court overruled said motion, to which defendant then and there excepted, and gave judgment against the defendant, to which the defendant then and there also excepted, and to reverse said judgment has brought the case to this court by appeal.

Messrs. ELDRIDGE & TOURTELLOTTE, for the appellant.

Mr. L. S. HODGES, for the appellee.

Mr. JUSTICE BAKER delivered the opinion of the Court:

The question of the proper construction to be given to sec. 49, of chap. 79, Rev. Stat. 1874, is raised by the assignment of errors in this case. That section reads as follows:

“In all suits which shall be commenced before a justice of the peace, each party shall bring forward all his demands against the other, existing at the time of the commencement of the suit, which are of such a nature as to be consolidated, and which do not exceed $200 when consolidated into one action or defense; and on refusing or neglecting to do so, shall forever be debarred from suing therefor.”

It will be noticed, this section of the statute refers only to suits commenced before a justice of the peace, and only requires a consolidation of demands which do not exceed $200 when consolidated. If the demands, when consolidated, exceed that sum, then such demands are not within either the language or the purview of this section. The judgment in the case at bar was for $120.75, and the amount due upon the other note, and for which a judgment was also recovered, was $145.03. The aggregate of these two demands greatly exceeded $200, and therefore they were not required, by said statutory provision, to be consolidated in one suit.

This same section was under consideration in the case of Mallock v. Krome, 78 Ill. 110. We there said: “If the amount of the claim which McDonald & Brown held against appellee, when added to the note, would have exceeded $200, then, under the statute, they would not have been required to consolidate the two. The statute is plain, that all demands of a nature to be consolidated, and which, when consolidated, do not exceed the jurisdiction of the justice, must be brought forward, or otherwise they will be barred.” To the same effect is the case of Buckner v. Thompson, 11 Ill. 563. The section then before the court was substantially that now before us, the only difference being, the jurisdiction of justices was then limited to $100, and the amount mentioned in the statute was correspondingly smaller than now. It is there said: “Each note constituted a separate demand, upon which the holder had a right...

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9 cases
  • Eastland County v. Davisson
    • United States
    • Texas Supreme Court
    • February 13, 1929 Use of De Haven v. Davis, 35 Mo. 406; Fisk v. Tank, 12 Wis. 276, 78 Am. Dec. 737; Union R. & T. Co. v. Traube, 59 Mo. 355; Nickerson v. Rockwell, 90 Ill. 460; Casselberry v. Forquer, 27 Ill. 170; Avery v. Fitch, 4 Conn. 362; Reformed Dutch Church v. Brown, 54 Barb. (N. Y.) 191; Pinney v.......
  • Underground Const. Co. v. Sanitary Dist. of Chicago
    • United States
    • Illinois Supreme Court
    • December 9, 1937
    ...months that had elapsed would have been analogous to bringing repeated suits for a single demand. This practice is condemned in Nickerson v. Rockwell, 90 Ill. 460. Plaintiff was not required so to do. In order that recovery for installments amount to res judicata of plaintiff's claim here, ......
  • Reynolds v. Jones
    • United States
    • Arkansas Supreme Court
    • December 5, 1896
    ... ... brought." Reformed Church v. Brown, ... supra; Union Ry. Co. [63 Ark. 266] v ... Traube, supra; Nickerson v ... Rockwell, 90 Ill. 460. Instalments of rent are ... subject to the same rule as are other instalments of money ... due. An action may be ... ...
  • Manton v. Gammon
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1880
    ...v. Sperry, 16 Johns, 131. A party cannot split his demands: Camp v. Morgan, 21 Ill. 255; Casselberry v. Forquer, 27 Ill. 170; Nickerson v. Rockwell, 90 Ill. 460; Williard v. Sperry, 16 Johns, 121. Although a court may reject a claim as inadmissible, yet, if in fact it ought to have been adm......
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