Thompson v. Emmert

• Decision Date: 30 June 1854
• Citation: 1854 WL 4702,15 Ill. 415,5 Peck 415
• Parties: WILLIAM R. THOMPSON et al.v.DAVID EMMERT et al.
• Court: Illinois Supreme Court

15 Ill. 415
1854 WL 4702 (Ill.)
5 Peck (IL) 415

WILLIAM R. THOMPSON et al.
v.
DAVID EMMERT et al.

Supreme Court of Illinois.

June Term, 1854.

THIS cause was heard before WILKINSON, judge, at October term, 1852, of the Carroll circuit court.

MANNING and DOUGLAS, for plaintiffs in error.HIGGINS and STROTHER, for defendants in error.

TREAT, C. J.

This was an action of debt, brought by Thompson and others against Emmert, Nelson and Campbell. Emmert alone was served with process. Nelson and Campbell did not appear to the action. The first count of the declaration was upon a judgment recovered by the plaintiffs against the defendants on the 8th of December, 1841, in the district court for the county of Alleghany and state of Pennsylvania. The second, third and fourth counts were upon promissory notes, bearing date the 1st of December, 1838, and made by the defendants, as partners, to the plaintiffs. Emmert filed four pleas, on all of which issues of fact were formed. The first plea was nul tiel record to the count on the judgment. The second plea alleged, in substance, that Emmert was not, at the commencement of the suit in Pennsylvania, or during the pendency thereof, an inhabitant or resident of that state or in any manner subject to the jurisdiction of its courts; and that he did not appear in that suit nor authorize any person to appear for him. The third plea alleged, in substance, that Emmert was a resident and inhabitant of the state of Maryland when the suit was commenced in Pennsylvania; that no process was ever served upon him, and that he never entered any appearance to the suit, nor authorized any appearance to be entered for him. The fourth plea was nil debet to the other counts of the declaration.

[15 Ill. 416]

On the trial the plaintiffs read in evidence the record of a judgment, corresponding with the one described in the first count of the declaration. It appeared that the judgment was rendered upon the promissory notes described in the three last counts of the declaration. It also appeared that Nelson only was served with process; but it further appeared that an attorney entered a general appearance for Emmert and Campbell. The plaintiffs likewise read in evidence copies of the notes described in the declaration. Emmert then introduced the deposition of the attorney by whom his appearance was entered. The attorney swore that he had no authority from Emmert to appear for him. On this evidence the jury returned a verdict for Emmert, and the court...