Palmer v. Gardiner

• Decision Date: 31 January 1875
• Citation: 1875 WL 8275,77 Ill. 143
• Parties: EZEKIEL H. PALMERv.THOMAS GARDINER et al.
• Court: Illinois Supreme Court

77 Ill. 143

1875 WL 8275 (Ill.)

EZEKIEL H. PALMER

v.THOMAS GARDINER et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.

This was a bill in chancery, by Ezekiel H. Palmer against Thomas Gardiner, sheriff, James M. Gunn, executor of the last will of A. Mitchell, deceased, Isaac N. Mitchell, and Augustus P. Mitchell. The opinion of the court states the facts of the case.

Mr. E. H. PALMER, pro se.

Messrs. MOORE & WARNER, for the appellees.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Appellant filed his bill to enjoin the collection of two judgments, one in the DeWitt circuit court, and the other in this court. The bill alleges that appellant signed a note for $1000, as surety for I. N. Mitchell, to A. Mitchell; that the note was for borrowed money, the interest payable annually, the first two instalments of which were paid by I. N. Mitchell, the principal debtor in the note. The payee brought suit against appellant; the principal in the note, and the payee resided at the time in Ohio; that the note had been indorsed in blank by the payee, and also by the cashier of a bank in Ohio; that the note was only due one day, by its terms, when suit was brought, and days of grace were not allowed; that on the trial the note was read in evidence, against the objection of defendant. Judgment was recovered, and an appeal was prayed to this court and perfected in April, 1872.

On the 4th of January, 1874, the plaintiff in the judgment died testate, and on the 15th of that month a transcript of the judgment and appeal bond was filed in this court, and, on motion of the attorneys for plaintiff below, the appeal was dismissed and a judgment rendered in favor of plaintiff below for $55, as damages.

The bill also alleges that the plaintiff in the judgment made his will, by which he gave to the principal debtor in the note one-eighth part of his estate, in trust for his children, and in case he should cease to have children alive, then to take the real estate in fee to himself.

On these judgments executions were issued and levied on 1200 acres of land, which is claimed to be excessive.

On filing the bill, a temporary injunction was granted, but answers were filed to the whole bill by Gardiner, and to part, by Gunn, denying that appellant was surety, but was principal in the note, and he demurred to the remainder of the bill. No replications were filed, and on a hearing on bill, answers and demurrer, the injunction was dissolved and the bill dismissed. From that decree this appeal is prosecuted.

That the circuit court had jurisdiction of the parties and the subject matter, there is no doubt, nor is it questioned; nor is it apparent, from the allegations of the bill, that there was even error in the record. It has been frequently determined that the possession of a note is prima facie evidence of ownership by the holder. In this case, the payee seems to have been the holder when suit was brought, nor do the indorsements contradict, or even tend to contradict, the presumption. The indorsements were in blank, and not, nor had they been, filled up at the trial. It is but a reasonable presumption that the note had been negotiated, but afterwards taken up by the payee. If so, the ownership, legal and equitable, returned to him, and he could maintain an action in his own name.

Suppose the payee had filled up the indorsement to the cashier, and he had filled up his to the payee, would any one have doubted that the payee took the legal title? And having taken up the note thus indorsed, the same result was produced; and had he stricken out the indorsements, the same end would have been attained. We fail to perceive any error in maintaining the action in the name of the payee.

As to the question of days of grace, the bill is loose and defective. It merely states conclusions. It should have given the date on which the note was, in terms, payable, together with the date of the commencement of the suit, that it might be determined whether the suit was prematurely brought. The bill only states that it was. But even if the facts were well stated, it is manifest that the ground of defense was in abatement, and not in bar. The defense does not go to the merits, but simply to the right to sue at that time. If such a defense were allowed in bar, then no future recovery could be had on the note, but if allowed in abatement, when the note matured an action could be maintained and a recovery had, unless defeated on the merits. A defense in bar always goes to the merits, and a plea in abatement only to the right to maintain that action. This defense was sought to bar the action, and hence could not be allowed, and we do not perceive, from the allegations in the bill, that there was error in the judgment sought to be enjoined.

The judgment, then, was valid and binding, but was stayed by the appeal, and it was the duty of appellant to file a transcript of the record in the case by the close of the second day of the term, or, within that time, to procure an order of the court extending the time. On failure to do so, appellant lost all right to further prosecute his appeal, and, under the long settled practice, the appeal could be dismissed, with damages, for want of prosecution. When appellant, therefore, failed to file his transcript previous to the third day of the next term of this court, in the division in which the appeal was taken, he lost all right to further prosecute his appeal, nor could the court grant him such right.

Has appellant shown such an excuse for failing to file his transcript as entitles him to relief in...