Niehoff v. People ex rel. Degan

• Decision Date: 22 December 1897
• Citation: 171 Ill. 243,49 N.E. 214
• Parties: NIEHOFF et al. v. PEOPLE, to Use of DEGAN.
• Court: Illinois Supreme Court

171 Ill. 243

49 N.E. 214

NIEHOFF et al.

v.PEOPLE, to Use of DEGAN.

Supreme Court of Illinois.

Dec. 22, 1897.

Error to appellate court, First district.

Assumpsit by Frank J. Degan against Conrad L. Niehoff, Michael W. Ryan, and another. Plaintiff amended all papers, making a suit in the name of the people for the use of Frank J. Degan. From a judgment for plaintiff, defendant Ryan, alone, appealed to the appellate court; and from a judgment of affirmance therein (62 Ill. App. 355) he appealed to the supreme court, which affirmed the judgment (46 N. E. 206, 165 Ill. 143). Defendant Niehoff brought error to the appellate court, which affirmed the judgment (66 Ill. App. 669), and he brings error. Affirmed.

Alex. Chytraus and Wm. S. Young, for plaintiff in error Niehoff.

Case & Hogan, for defendants in error.

PHILLIPS, C. J.

An action of assumpsit was brought by Frank J. Degan against Joseph Georgen, Michael W. Ryan, and the appellant, who were served with summons on March 8, 1895. A declaration containing the common counts, only, was filed on March 22, 1895. On March 26th, leave was granted to amend all papers to make the suit in the name of the people of the state of Illinois, for use of Frank J. Degan, and on the same day leave was granted to file an additional count instanter. This additional count was a count in debt, and alleged that Frank J. Degan was a minor, and that Joseph Georgen was appointedhis guardian, and executed a bond, with Conrad Niehoff and Michael W. Ryan as sureties, which was duly approved; and, after setting forth the liability under the bond, the count alleges that certain moneys came to the hands of the guardian which he converted to his own use, and failed to turn the same over to the plaintiff. After the filing of this count, and on April 1, 1895, a default was entered against Georgen and the plaintiff in error. The common counts were afterwards withdrawn. Michael W. Ryan pleaded to the declaration, and subsequently an amended declaration, which amounted to an additional count, was filed, and issue joined therein by Ryan. This latter declaration was substantially the same as the former; the only material difference being that it was averred in the first amended declaration that money came to the hands of the guardian from the proceeds of rents and sale of real estate, and in the latter it was averred that money came to the hands of the guardian as the proceeds of moneys and profits of the personal estate. Under the issues made on these pleadings a trial was had with a jury, who found adversely to Ryan. The verdict of the jury was, at the request of counsel for defendant in error, against all the defendants, and the assessment of the damages was placed at $1,226.48. From that judgment Ryan prosecuted an appeal to the appellate court of the First district, where it was affirmed, and then prosecuted an appeal to this court, where the judgment of the appellate court was affirmed, and is reported as Ryan v. People, 165 Ill. 143, 46 N. E. 206. The record in this case is the same that was filed in that case. The guardian's bond was in evidence, as also an entry on the record of the probate court, which is set out in full in the Ryan Case, by which it appears that a final account of the guardian was presented, and there was found due the ward at the time of entering that order a total sum of $1,191.57. That order was held admissible as evidence in the Ryan Case, and was conclusive upon the guardian and his sureties, unless impeached for fraud or mistake. Ryan v. People, supra; Gillett v. Wiley, 126 Ill. 310, 19 N. E. 287. This evidence was sufficient to authorize a recovery under either of the amended counts of this...