Sholty v. McIntyre

• Decision Date: 02 November 1891
• Citation: 139 Ill. 171,29 N.E. 43
• Parties: SHOLTY et al. v. McINTYRE.
• Court: Illinois Supreme Court

139 Ill. 171

29 N.E. 43

SHOLTY et al.

v.McINTYRE.

Supreme Court of Illinois.

Nov. 2, 1891.

Error to appellate court, third district. Affirmed.

Action by Levi W. Sholty and others against Robert S. McIntyre, administrator of Benjamin D. Sholty, to recover for a trespass committed by the deceased in his life-time. Verdict and judgment for plaintiffs. Levi W. Sholty sued out error to the appellate court in the name of and without the knowledge or consent of the administrator. On motion of the administrator the writ was dismissed, and Sholty brings error.

Kerrick, Lucas & Spencer and Thomas F. Tipton, for plaintiff in error.

I. N. Phillipps, for defendant in error.

MAGRUDER, C. J.

This is an action of trespass brought in the circuit court of McLean county by the widow and heirs of Jacob Sholty, deceased, including Levi W. Sholty, against Robert S. McIntyre, as administrator of the estate of Benjamin D. Sholty, deceased. The suit was brought in the name of said widow and heirs, but for the use of the Patrons' Mutual Fire & Lightning Insurance Company of Stanford, Conn. Upon the trial in the circuit court the jury found the defendant guilty, and assessed the damages at $2,500. Motions for a new trial and in arrest of judgment were overruled, and judgment was rendered on the verdict. A writ of error was prosecuted from the appellate court to the circuit court by Levi W. Sholty, one of the nominal plaintiffs below, in the name of McIntyre, the administrator, who was the defendant below, but without the knowledge or consent of the latter. McIntyre, as administrator of Benjamin D. Sholty's estate, being the sole defendant against whom the judgment was rendered in the circuit court, and being the plaintiff in error in whose name the writ of error was sued out in the appellate court, made a motion in the latter court to dismiss the writ of error, which motion was allowed. The case is brought before us by writ of error to the appellate court to review the action of the appellate court in so dismissing the writ of error pending in that court. A motion is also made in this court by McIntyre, administrator, who is the plaintiff in error here, to dismiss the present writ of error, upon the ground that the writ was sued out by Levi W. Sholty without the consent or authority of the plaintiff in error.

Did McIntyre, administrator, the plaintiff in error in the appellate court, have the right to dismiss the writ of error sued out there in his name? Has he the right to dismiss the writ of error sued out from this court in his name? Levi W. Sholty, who has sued out these writs of error in the name of the original defendant in the judgment below, is a brother and heir of Benjamin D. Sholty, deceased, the latter having died unmarried. He is also a creditor of his deceased brother's estate. In his own right and in his own name he has a judgment against Benjamin D. Sholty's estate for $2,250, and, as administrator of his deceased wife, he has another judgment against said estate for $2,500. McIntyre v. Sholty, 121 Ill. 660, 13 N. E. Rep. 239. It is conceded that said estate is insolvent, and insufficient to pay the two last-named judgments; so that, if said judgments were paid, there would be nothing left to apply upon the judgment of the present defendant in error. It is a general rule that no person can sue out a writ of error who is not a party or privy to the record, or who is not shown by the record to be prejudiced by the judgment. Colman v. Oil Co., 25 W. Va. 148;Howse v. Judson, 1 Fla. 133;Townsend v. Davis, 1 Ga. 495;Porter v. Rummery, 10 Mass. 64;Steel v. Bridenbach, 7 Watts & S. 150; Heirs of Hill v. Hill's Ex'rs, 6 Ala. 166,Dale v. Roosevelt, 8 Cow. 333;Jaqueth v. Jackson, 17 Wend. 434; 2 Tidd Pr. 1135, and note a; 6 Amer. & Eng. Enc. Law, 817. Levi W. Sholty was one of five or six nominal plaintiffs suing in the court below for the use of the insurance company. He made a motion in that court to have the suit dismissed as to him, upon the ground that he had not authorized it to be prosecuted in his name; but this motion was overruled, and judgment was rendered in his favor, and in favor of his co-plaintiffs, for the use of the insurance company, against McIntyre, administrator of said estate. The writ of error is usually brought by the party or parties against whom the judgment was rendered. 2 Tidd Pr. p. 1134. Here it has been brought in the name of the party against whom the judgment was rendered, but without his consent, his name being made use of by one of the parties in whose favor the judgment was rendered. It has been said that a writ of error may be brought by a plaintiff to reverse his own judgment, if erroneous, in order to enable him to bring another action. 2 Tidd. Pr. p. 1134. Johnson v. Jebb. 3 Burrows. 1772. in the Jebb Case, it would appear that the judgment was for a less amount than the plaintiff claimed that it ought to be.

Whether or not Levi W. Sholty could prosecute a writ of error under the circumstances of this case is a question which it is not necessary to pass upon, further than to say that, if he could do so, he would be under the necessity of suing it out in the name of all the plaintiffs in the judgment below, including his own. All the plaintiffs or defendants in the original suit who are alive must join in the writ of error, and it is competent for one to join the others without their consent. The reasons for this rule are that the writ must agree with the record, and that, if one of a number of plaintiffs, or one of a number of defendants, who have not distinct and several interests, should be permitted to bring a writ of error, every one might do the same, and such a practice would tend to multiply suits. If the parties whose names are thus used by a co-plaintiff or co-defendant choose to abide an erroneous judgment, and refuse to appear and assign errors, they must be summoned and severed, and then, after the severance, the writ may be prosecuted in the name of such co-plaintiff or co-defendant. Jameson v. Colburn, 1 Stew. & P. (Ala.) 253;Watson v. Whaley, 2 Bibb, 392;Deneale v. Archer, 8 Pet. 526; 2 Tidd, Pr. 1162, 1163, note a.; Harding v. Larkin, 41 Ill. 413;Page v. People, 99 Ill. 418. We are therefore of the opinion that Levi W. Sholty is not such a party to the record in the present case as that he has the right to sue out a writ of error in the name of the defendant below without the latter's consent.

It cannot be said that Levi W. Sholty is in any way privy to the record. There are privies in blood, as the heir is to the ancestor; privies in representation, as is the executor or administrator to the deceased; privies in estate, as lessor and lessee, etc. If this judgment had been rendered against Benjamin D. Sholty in his life-time, then Levi W. Sholty, being a brother and heir, might be entitled to sue out a writ of error as a privy in blood. But there can be no relation of privity between an heir of the deceased and the administrator of the deceased's estate.

Nor can it be said that Levi W. Sholty is shown by the record in this case to be prejudiced by the judgment below. It being...