Russell v. Hubbard

• Decision Date: 30 September 1871
• Citation: 1871 WL 8048,59 Ill. 335
• Parties: S. S. RUSSELLv.WILLIAM L. HUBBARD et al.
• Court: Illinois Supreme Court

59 Ill. 335

1871 WL 8048 (Ill.)

S. S. RUSSELL

v.WILLIAM L. HUBBARD et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. HANNAMAN & KRETZINGER, for the appellant.

Messrs. WILLIAMS & CLARK, for the appellees.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

On the 1st day of February, 1860, Furry, since deceased, conveyed to appellees a lot of ground, and the deed contained the following special covenant: “Whereas, the building located on the premises hereby conveyed, is adjoining and attached to a brick building, formerly owned by Daniel Harman, and the north wall thereof being used as the south wall of the building hereby conveyed, the said party of the first part hereby expressly covenants, to and with the said party of the second part, to indemnify, protect and save harmless from all injury, loss or damages, from the connection of the buildings in the manner aforesaid, from any and all claims from said Harman, or his heirs, administrators or assigns, preferred therefor.”

Furry died in 1864, and on the 22d day of February of that year, letters of administration were granted to appellant.

The claim for damages for breach of the covenant, was not filed in the county court until in November, 1867.

The term fixed by the administrator for the adjustment of claims, was in April, 1864.

It was admitted that Harman mortgaged his lot to one Locke, and that the mortgagee had acquired title by a decree of foreclosure, and sale and deed thereunder, and that appellees had conveyed their lot to Anderson & Co.

Locke claimed $250, as damages for breach of the covenant. This amount was paid to him by Anderson & Co., and appellees paid to them the same amount, and now seek to recover it from the estate of the deceased. The claim filed by them, was for only $206, while the judgment rendered was for $288.65. There are numerous errors, for which the judgment must be reversed.

The claim was not filed at the term selected by the administrator for adjustment. In such case the statute requires that a copy of the claim shall be filed with the clerk, with an order for summons to the administrator to defend the claim. It is also made the duty of the clerk to provide a “Judgment Docket,” in which he shall enter the name of the claimant, and the amount of the note or account. (Sess. Laws of 1859, p. 93.)

The judgment should only have been for the amount of the account filed, with interest from the 15th of November, 1867, the date of the payment by appellees. The court evidently rendered judgment for $250 dollars and accrued interest.

By the fair construction of the statute, the claimant is limited in his recovery, by the amount claimed, as much as a plaintiff is by the ad damnum in his declaration. The law requires the amount to be filed and docketed, so that the administrator may consent to its allowance, and avoid the expense of litigation. Wherefore the necessity of these requirements, if a larger amount may be proved and recovered? Some effect must be given to the statute, and it would have none if the practice indulged by the court below were followed.

The court rendered judgment against appellant for all costs, both in the circuit and county courts. The statute expressly provides that estates shall be answerable for costs on claims filed at or before the term selected for adjustment, but not after. The claimant had selected his forum, and the statute must control. Its language is imperative, in its application to this case, that the estate was not liable for the costs incurred in the county court.

The attempt to enter a remittitur, as to the costs, does not cure the error. The judgment was rendered at the June term. In October following, and in vacation, when the judge was about to sign the bill of exceptions, he inserted therein a written remittitur of the costs. This did not thereby become a part of the judgment. It stands in full force, as originally rendered. The remission should have been made during the term of the court, and while the judgment was under its control. Rowan v. The People, 18 Ill. 159.

The judgment is erroneous in another respect. Execution was awarded against the administrator, and judgment for the damages and costs was made absolute against him. This was manifest error.

There was no proof of mala fides or gross negligence on the part of the administrator, and in the absence of such evidence he never can be made personally liable for costs. Ordinarily, the judgment should be against the goods and chattels of the deceased, in the hands of the administrator to be administered. In this case, as the claim was not filed within two years from the granting of letters, the judgment could only have been for the amount due, to be paid out of subsequently discovered estate, and which had not been inventoried and accounted for. The judgment should have been special, and not general. Thorn v. Watson, 5 Gilm. 26; Judy v. Kelly, 11 Ill. 211; Peacock v. Haven, Adm'r, 22 Ill. 23; Greenwood v. Spiller, 2 Scam. 504...