Seymour v. O.S. Richardson Fueling Go.

• Decision Date: 26 October 1903
• Parties: SEYMOUR et al. v. O. S. RICHARDSON FUELING GO.
• Court: Illinois Supreme Court

205 Ill. 77

68 N.E. 716

SEYMOUR et al.

v.O. S. RICHARDSON FUELING GO. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Action by the O. S. Richardson Fueling Company against John Seymour and others. From a judgment of the Appellate Court (103 Ill. App. 625) modifying and in part reversing a judgment in favor of plaintiff, certain defendants appeal. Reversed.C. E. Kremer, for appellants.

Hubert E. Page, for appellee.

This is an action in assumpsit, brought by attachment on the ground of the nonresidence of a part of the defendants, and begun on or about April 18, 1898, by the O. S. Richardson Fueling Company, for use of Levi Windmuller, against John Seymour, Richard A. Seymour, Elwyn W. Seymour, and Antoine E. Cartier, copartners as Seymour Transportation Company, for the price of coal alleged to have been furnished at divers times between the 1st day of August, 1895, and the 28th day of September, 1895, to the steamer Puritan, owned by the defendants. The original special count of the declaration alleged that between August 1, 1895, and September 28, 1895, the defendants, pretending and assuming to be officers and directors of a pretended stock corporation by name of Seymour Transportation Company, having its principal office and place of business in Cook county, assumed to exercise corporate powers, granted under and by virtue of the laws of the state of Illinois, and to use said corporate name, without having complied with chapter 32, Hurd's Rev. St. Ill. 1893, to wit, did not file or cause to be filed prior to September 28, 1895, in the recorder's office of Cook county a certificate of complete organization, ‘and did purchase from said plaintiff on the alleged behalf of said pretended corporation goods,’ etc., of the value of $1,071.03, and delivered said goods to defendants, ‘to them as and so pretended to be directors, officers, and agents of said pretended corporation.’ The common counts consolidated were also embodied in the declaration. A plea of general issue with affidavit of merits was filed by all the defendants. They also filed additional pleas, setting up section 18 of chapter 121, rev. St. U. S. (Act June 26, 1884, c. 121, 23 Stat. 57 [U. S. Comp. St. 1901, p. 2945]), and alleging total destruction of steamer on December 31, 1895, and that she is of no value, and that there is no freight pending. Replication was filed to the additional pleas to the effect that said steamer was not lost on the trip immediately succeeding the furnishing of the coal, but that the vessel made several trips thereafter prior to her loss; and also to the effect that defendants filed petition to limit liability in the United States District Court as to this same indebtedness, which petition since the last continuance has been denied. Demurrers were filed to the replications, which appear to have been overruled, and rejoinders were filed to the first and second replications.

The defendant Elwyn W. Seymour filed, by leave of court, a plea of bankruptcy, alleging that, after the making of the supposed promises in the declaration, on, to wit, the 12th day of November, 1900, the District Court of the United States of America for the Northern District of Illinois granted to the said Elwyn W. Seymour a discharge in bankruptcy; and that the said supposed claim of the plaintiff was scheduled by the said defendant in his petition for adjudication as a bankrupt in said court. No replication was ever filed to the plea setting up a discharge in bankruptcy. Subsequently the plaintiff below filed an amended count to the declaration, declaring against the defendants as members the Seymour Transportation Company, doing business without having filed its certificate of complete organization with the reand stockholders of the pretended corporation corder of deeds of Cook county, and that the plaintiff, at the special instance and request of said defendants, delivered to them, as and so pretending to be members and stockholders of the pretended corporation as aforesaid, certain coal, etc. Other pleas and replications were filed. The cause went to trial before the court and a jury, and the trial resulted in a verdict finding the issues for the plaintiff below, the present appellee, and assessing the damages at $1,367.33. Motion for new trial was overruled, and judgment was entered for $1,367.33, and costs against all the defendants, and it was ordered that execution issue. The judgment entered by the circuit court was as follows: ‘This cause coming on to be heard upon the defendant's motion heretofore entered herein for a new trial in said cause, after arguments of counsel and due deliberation by the court said motion is overruled, and a new trial denied. Therefore it is considered by the court that the plaintiffs do have and recover of and from the defendants John Seymour, Richard A. Seymour, Elwyn W. Seymour, and Antoine E. Cartier, as Seymour Transportation Company, its said damages of $1,367.33, in form as aforesaid by the jury assessed, together with its costs and charges in this behalf expended, and have execution therefor.’

It was proven upon the trial that Elwyn W. Seymour, being unable to pay any of his debts and obligations, had gone through bankruptcy; and there was introduced in evidence a duly certified copy of an order of discharge, entered by the District Court of the United States of America for the Northern District of Illinois on November 12, A. D. 1900, reciting that Elwyn W. Seymour of Chicago, in said district, had been duly adjudged a bankrupt under the acts of Congress relating to bankruptcy, and appeared to have conformed to all the requirements of law in that behalf, and ordering that he be discharged from all debts and claims made provable by said acts against his estate, and which existed on the 12th day of September, A. D. 1900, on which day the petition for adjudication was filed by him, except such debts as were by law excepted from the operation of the discharge in bankruptcy. Accompanying said order of discharge was a duly certified copy of the schedule in bankruptcy, attached to the petition of the bankrupt, in which schedule was named the claim here sued upon in the sum of $1,200 for coal furnished to the steamer Puritan. An appeal was taken from the judgment of the circuit court to the Branch Appellate Court. After a hearing of the cause in the Branch Appellate Court, the following judgment was entered by that court: ‘On this day came again the said parties, and the court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, are of the opinion that in the record and proceedings aforesaid and in the rendition of the judgment aforesaid there is manifest error as to Elwyn W. Seymour, one of the appellants herein. Therefore it is considered by the court that for that error and others in the record and proceedings aforesaid the judgment of the circuit court of Cook county in this behalf rendered be reversed, annulled, and set aside, and wholly for nothing esteemed, as to Elwyn W. Seymour, one of the appellants herein; and it appearing to the court now here that neither in the record and proceedings aforesaid nor in the rendition of the judgment aforesaid is there anything erroneous, vicious, or defective as to John Seymour, Richard A. Seymour, and Antoine E. Cartier, and in that record there is no error as to them, therefore it is considered by the court that the judgment aforesaid by affirmed as to the said John Seymour, Richard A. Seymour, and Antoine E. Cartier, and stand in full force and effect as to them, notwithstanding the matters and things therein assigned for error; and it is further considered by the court that the said Elwyn W. Seymour, one of the appellants herein, recover of and from the said O. S. Richardson Fueling Company, for use of Levi Windmuller, appellee, his costs by him in this behalf expended to be taxed; and that the said appellee, O. S. Richardson Fueling Company, for use of Levi Windmuller, recover of and from the said John Seymour, Richard A. Seymour, and Antoine E. Cartier its costs by it in this behalf expended, to be taxed, and that executions issue in favor of the respective parties in accordance with the foregoing order.’

MAGRUDER, J. (after stating the facts).

We pass no opinion upon the merits of the controversy presented by this record, inasmuch as the judgment of the Appellate Court must be reversed on account of the character of the judgment itself. The judgment rendered by the circuit court was a money judgment in behalf of appellee, the O. S. RichardsonFueling Company, against the four defendants below, appellants here, to wit, John Seymour, Richard A. Seymour, Elwyn W. Seymour, and Antoine E. Cartier. The money judgment thus rendered was a unit as to all the defendants, and upon appeal the judgment must be reversed as to all the defendants if reversed as to any one of them. The judgment of the Appellate Court reversed the judgment as to Elwyn W. Seymour and affirmed it as to the three other defendants below, the appellants here, John Seymour, Richard A. Seymour, and Antoine E. Cartier. An entire judgment against several defendants cannot be affirmed as to one and reversed as to the others. Hays v. Thomas, Breese, 180. Where the judgment is entire, there must be a total affirmance or reversal. Richards v. Walton, 12 Johns. 434. In Arnold v. Sandford, 14 Johns. 417, it was said: ‘Where the judgments are distinct, we may reverse in part and affirm in part, as in cases of damages and costs; but when the judgment is entire there must be a total affirmance or reversal.’ In Earp v. Lee, 71 Ill. 193, we said (page 197): ‘It is also urged that, although the judgment may be erroneous as to a part of the defendants, still it is correct as to Atkins, and that it...