Robinson v. Brown

• Decision Date: 30 June 1876
• Citation: 82 Ill. 279,1876 WL 10197
• Parties: JO ROBINSONv.WILSON K. BROWN et al.
• Court: Illinois Supreme Court

82 Ill. 279

1876 WL 10197 (Ill.)

JO ROBINSON

v.WILSON K. BROWN et al.

Supreme Court of Illinois.

June Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Saline county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Mr. ALFRED C. DUFF, for the plaintiff in error.

Mr. H. H. HARRIS, for the defendants in error.

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

This was a scire facias, to revive a judgment rendered at the August term, 1859, of the circuit court of Saline county, brought by Wilson K. Brown against John S. Eubanks, William G. Sloan, Moses P. McGehee and Jo Robinson, to the November term, 1874, of said court.

The defendants were all served except Eubanks.

At the return term, Sloan pleaded bankruptcy, nil debet, and nul tiel record. Robinson filed pleas of nil debet, nul tiel record, partial and full payment. A demurrer was sustained to the pleas of nil debet, and overruled to the other pleas. There do not appear to have been any replications filed to these latter pleas, but the record shows that the parties, by agreement, submitted the issue in the cause to the court, and after hearing the evidence, the court rendered judgment against the defendants, Robinson and McGehee, for $67.82, the amount remaining unpaid of the original judgment for $283.05, with interest, after having deducted the sum of $270, which had been made on execution. Sloan was found to be a bankrupt, and that he had been adjudged to be such under the general bankrupt law.

Robinson appealed to this court. It is insisted that the court below erred in proceeding to final judgment while any one of the pleas remained unanswered.

Although this was irregular, it was held, in Bunker et al. v. Green, 48 Ill. 243, that, by going to trial in such a case, without demanding to have the pleas answered, the defendants waived the objection, and could not assign the want of replications as error in this court, especially when it did not appear, as here, that any injury resulted therefrom. It is objected, too, that the court erred in not making any disposition of the case as to the defendant Sloan, and in not defaulting McGehee, who had failed to plead. In finding that Sloan had been adjudged a bankrupt, and not rendering judgment against him, there was virtually a judgment in his favor. The plaintiff in error, Robinson, can not assign errors committed against a co-defendant, where his rights, as in this case, are not affected by the error. Greenman et al. v. Harvey, 53 Ill. 387.

There is nothing in the objection that the court admitted the former judgment in evidence without proof being made that the same was the record of a judgment. The judgment was read in evidence from the record book of the same court hearing the cause, of which the court took judicial notice, and it proved itself.

We perceive no foundation for the objection that the judgment...