People v. Gray

• Citation: 72 Ill. 343,1874 WL 8820
• Parties: THE PEOPLE, for the use of Arthur Foster,v.JOHN GRAY.
• Decision Date: 30 June 1874
• Court: Illinois Supreme Court

72 Ill. 343

1874 WL 8820 (Ill.)

THE PEOPLE, for the use of Arthur Foster,

v.JOHN GRAY.

Supreme Court of Illinois.

June Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. AMOS WATTS, Judge, presiding.

Mr. HENRY C. GOODNOW, for the plaintiff in error.

Mr. SILAS L. BRYAN, and Mr. JOHN B. KAGY, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of debt, brought by appellant against appellee and his sureties, upon the official bond of appellee, as administrator of the estate of James H. Nichols, deceased.

It is averred in the declaration, that within two years from the granting of letters of administration, appellant exhibited a claim for the sum of $150 against the estate, to John H. Gray as administrator, which claim was allowed by the county court of Marion county, and judgment rendered in favor of appellant, against the estate, on, to-wit: the 19th day of February, 1872, for the amount of the claim, to be paid by the administrator as a debt of the fourth class; that John H. Gray, the administrator, has not paid in due course of administration, or any part thereof, though often requested so to do; that Gray has received the assets of the estate, and has sold and disposed of the same, and received and wasted the proceeds, and has failed and refused to pay appellant.

To the declaration two pleas were filed, upon which issue was taken: first, non est factum; second, that the said Arthur Foster did not exhibit his said claim against the estate of James H. Nichols within two years next from the date of said letters of administration.

Appellant, upon the trial of the cause, read in evidence the bond of the administrator, also the record of the county court, which read as follows:

+---------------------------------------------------+
                ¦“STATE OF ILLINOIS,¦)¦County Court Record, February¦
                +-------------------+-+-----------------------------¦
                ¦Marion County.     ¦)¦Term, 1872.                  ¦
                +---------------------------------------------------+
                

In the matter of the estate of James A. Nichols, deceased. John H. Gray, administrator. Adjustment. And now, at this day, to-wit: Monday, February 19, 1872, comes John H. Gray, administrator aforesaid; comes, also, Arthur Foster, and presents a claim against said estate in the sum of $150, and now, the allegations of the parties being heard and considered by the court, it is ordered that said claim be allowed, classed and paid, as follows: claim of Arthur Foster, 4th class, $150.”””

The defendant admitted he had received sufficient assets of the estate of James A. Nichols to pay all claims allowed against the estate, and that he still had assets enough in his hands, belonging to the estate, to pay the claim of Arthur Foster.

The court, on motion of appellee, excluded from the jury the record showing the allowance in the county court of appellant's claim, and the jury returned a verdict in favor of appellee. A motion was entered for a new trial, which the court overruled, and rendered judgment upon the verdict.

The only ground upon which appellee objected to the record of the county court, as shown by the bill of exceptions, was on account of a variance between the judgment as shown by the record and the judgment set out in the declaration.

It is averred in the declaration that appellant exhibited a claim of $150 against the estate, which was allowed by the county court, and judgment rendered in favor of appellant, against the estate, for the amount of the claim, to be paid by the administrator, in due course of administration, as a debt of the fourth class.

The county court record shows the appearance of the administrator and the claimant; that appellant presented a claim...