The Chicago Legal News Co. v. Browne

• Citation: 1882 WL 10318,103 Ill. 317
• Parties: THE CHICAGO LEGAL NEWS COMPANYv.THOMAS R. BROWNE et al.
• Decision Date: 21 June 1882
• Court: Supreme Court of Illinois

103 Ill. 317

1882 WL 10318 (Ill.)

THE CHICAGO LEGAL NEWS COMPANY

v.THOMAS R. BROWNE et al.

Supreme Court of Illinois.

Filed at Ottawa Jun. 21, 1882.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding. Mr. FRANCIS H. KALES, for the appellant.

Mr. JAMES E. MUNROE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit, brought by Edmund L. Davison, as plaintiff, on the 26th day of December, 1877, against the Chicago Legal News Company, on two leases under seal, to recover certain rents alleged to be in arrear. On the 9th day of February, 1878, the defendant filed the plea of the general issue, and two special pleas of set-off, alleging that it had suffered damages to its property by reason of intoxication of its employés, caused by the sale of intoxicating liquors in another part of the same building, a portion of which was leased to defendant, which damages the defendant offered to set off against the claims of the plaintiff. On October 15, 1878, the bankruptcy of plaintiff was suggested upon the record by plaintiff's counsel, and on his motion leave was granted to make and substitute Thomas R. Browne and F. R. Neale, Jr., assignees in bankruptcy of said plaintiff, parties plaintiff in place of said bankrupt. Afterwards there were other pleadings by the defendant to the merits, and trial had upon issues joined, resulting in a verdict and judgment in favor of plaintiffs, which judgment, on appeal to the Appellate Court for the First District, was reversed for error in the instructions given to the jury for the plaintiffs, and the cause remanded. (5 Bradwell, 250.) After the redocketing of the cause in the circuit court, defendant moved for a discontinuance of the case, which motion was overruled and exception taken. Another trial was had, which resulted in a verdict and judgment for plaintiffs, and the judgment was affirmed by the Appellate Court, and appeal taken to this court.

The judgment of the Appellate Court is conclusive upon the controverted questions of fact, and but two questions of law are presented upon the record for our determination. One is, that the circuit court improperly permitted the assignees in bankruptcy to become parties plaintiff by substitution.

It is said there is no statute of this State authorizing the substitution; that the act of Congress authorizing such a substitution in some cases (Rev. Stat. U. S., sec. 5047,) is not a rule of practice for State courts, and that even within the act of Congress no case was made for the substitution, as it does not appear that at the time of the commencement of the proceedings in bankruptcy this action was pending in the name of the bankrupt debtor, nor even that it was pending at the time of the adjudication in bankruptcy. It is insisted, there being no statutory authority for the substitution, that the rule of the common law must govern, by which a change of parties after suit brought could be effected only by a scire facias, and that the irregularity of failing to sue out the writ of scire facias, and thus omitting to tender any issue as to the bankruptcy of Davison, and the appointment of his assignees, operated as a discontinuance. The register's deed of assignment in bankruptcy to the assignees was introduced in evidence on the trial, and sec. 5049, Rev. Stat. U. S., makes this deed conclusive evidence of title in the assignees; but admission of the...