Raplee v. Morgan
| Decision Date | 31 December 1840 |
| Citation | 2 Scam. 561,3 Ill. 561,1840 WL 3004 |
| Parties | URIAH RAPLEEv.THOMAS MORGAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS cause was heard in the court below, at the October term, 1839, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiff in that court, for $48 and costs. The defendant appealed to this court.
M. MCCONNEL and J. A. MCDOUGALL, for the appellant.
J. LAMBORN, for the appellee.
1
This was an action of debt brought by the appellee against the appellant, before a justice of the peace, upon an assignment of a promissory note for $62.51, and taken by appeal into the circuit court.
Upon the trial, the plaintiff below offered in evidence the note and assignment from Raplee to him, also a summons issued by a justice of the peace of Scott county, at his suit, against one S. J. Lowe, the maker of the note. He also offered in evidence, an execution against said Lowe, and the constable's return of nulla bona thereon.
He likewise offered in evidence another execution from the Scott circuit court, upon a transcript of the judgment of the justice against said Lowe, and a return by the sheriff upon it, “no property found.”
He proved, by the constable in whose hands the first execution had been placed, that he had searched three times for property: that Raplee told him he believed Lowe had no personalty, and advised him to return the execution, that another might issue from the circuit court, to be levied upon land, which Lowe said he owned. To all of which the defendant below objected, and moved the court to enter a nonsuit, which the court refused, and to which the defendant excepted.
The defendant proved that the consideration of the assignment paid him by Morgan, was $46 or $48, and thereupon moved the court for judgment for threefold the amount of the difference between the sum so paid, and the amount due upon the note; which was disallowed by the court, and judgment rendered for $48.
The appellant assigns for error,
First. The admission of the execution in evidence without first showing the judgment upon which it issued;
Secondly. The refusal to enter a nonsuit;
Thirdly. The inadmissibility of the return upon the executions, to show due diligence on the part of the appellee;
Fourthly. The improper admission of the testimony of the constable;
Fifthly. The opinion of the court in refusing to render judgment for threefold the amount alleged to have been taken as usury, is assigned for error; and,
Lastly. All the decisions of the court in the cause are assigned for error.
The court is of opinion that the first error is not well assigned. The appellant was a privy in interest in the suit instituted by the appellee against Lowe, the maker of the promissory note, and would have been concluded by a recovery by the defendant in that suit.
It is a well settled principle, that parties and privies in interest, are concluded by a judgment. 1 In an action, therefore, by the appellee against the appellant, upon his legal responsibility, arising out of the very assignment by which the appellee acquired a right, under the statute, to sue the maker of the note, we are of the opinion that it was not necessary to show the judgment to which he was privy, to lay a foundation for the introduction in evidence of an execution issued thereon. As between either of the parties thereto and third persons, such evidence would be indispensable; and between third persons or strangers to the record, the like rule prevails, with the exception of officers who justify under such process, against action of trespass for alleged injuries arising from their official acts.
If the premises and corollary be correct, the court correctly refused to enter a non-suit, which is assigned as the second error.
The third error assigned questions the admissibility and sufficiency of the evidence, by a return of nulla bona on the executions, to establish due diligence on the part of the assignee, in pursuing the debtor to insolvency.
Where diligence by suit is shown, to fix the assignor's liability, such a return is a very necessary part of the plaintiff's proof. But it is also necessary to show that suit was instituted within a reasonable time after the debt became due, or assignment made;...
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