Sawyer v. Nelson

• Decision Date: 28 March 1896
• Citation: 43 N.E. 728,160 Ill. 629
• Parties: SAWYER et al. v. NELSON.
• Court: Illinois Supreme Court

160 Ill. 629

43 N.E. 728

SAWYER et al.

v.NELSON.

Supreme Court of Illinois.

March 28, 1896.

Appeal from appellate court, First district.

Proceedings on the application of Knute Nelson for discharge, under the insolvent debtor's act, from arrest on a judgment against him in favor of Henry Sawyer and others. On appeal from the county court to the circuit court, there was a judgment releasing the applicant, which was affirmed by the appellate court (59 Ill. App. 46), and plaintiffs again appeal. Affirmed.

Cratty Bros. and Gray, McLaren, Jarvis & Cleveland, for appellants.

Chytraus & Deneen, for appellee.

BAKER, J.

Appellants recovered a judgment against appellee, in the superior court of Cook county, for $1,361.05. Thereafter appellee was arrested upon a ca. sa., issued at the instance of appellants, upon that judgment, and made application to the county court of said county for his discharge under the provisions of the insolvent debtor's act. He was allowed by that court to schedule as an insolvent, and was discharged from imprisonment. Thereupon appellants appealed to the circuit court, where a jury trial resulted in a verdict and judgment in favor of appellee. On appeal to the appellate court, the judgment of the circuit court was affirmed, and from the judgment of affirmance this further appeal is taken.

On the trial in the circuit court appellants offered in evidence the record of the superior court judgment upon which the ca. sa. had been issued, and in connection therewith the declaration in the cause in which said judgment was rendered. The declaration consisted of three counts. In the first two of them malice was the gist of the action. The third was an ordinary count in trover. Said judgment was rendered by default, and was a general judgment. Nothing appeared upon its face to indicate upon which count or counts it was based. Appellee was entitled to be released if malice was not the gist of the action in which the judgment against him was rendered. Rev. St. c. 72, § 2. Was malice the gist of such an action? Where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, the determination in the former suit is conclusive upon the parties in the latter suit. Hanna v. Read, 102 Ill. 596.It is claimed that appellee is estopped, by the adjudication had in the superior court, from claiming that malice was not the gist of the action. This claim is not well made. The burden of establishing an estoppel is upon him who invokes it. Freem. Judgm. § 276. In order that the judgment should operate as an estoppel, it must either appear upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. As said by the supreme court of the United States in Russell v. Place, 94 U. S. 606: ‘If there be any uncertainty on this head in the record,-as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have...