Wilson v. Winkle

• Decision Date: 31 December 1845
• Citation: 7 Ill. 684,1845 WL 3986,2 Gilman 684
• Parties: GREENUP WILSON et al., Executors of Thomas Wilson, deceased,v.HIRAM VAN WINKLE.
• Court: Illinois Supreme Court

2 Gilman 684

7 Ill. 684

1845 WL 3986 (Ill.)

GREENUP WILSON et al., Executors of Thomas Wilson, deceased,

v.HIRAM VAN WINKLE.

Supreme Court of Illinois.

December Term, 1845.

APPEAL from the decision of the probate justice of the peace of Edgar county, on a claim filed by the defendant in error against the estate of the testator of the plaintiffs in error. The case in the probate court was tried by a jury on the 9th day of June, 1842, who rendered a verdict against the estate of $873.45, on which judgment was entered. The case was taken to the circuit court by appeal, and heard at the October term, 1844, before the Hon. William Wilson, without the intervention of a jury, and by agreement of the parties, judgment was to be entered in vacation. On the 21st day of December, 1844, judgment was accordingly entered, affirming the judgment of the probate justice, and ascertaining the same, with legal interest, to be $1015.15.

The facts of the case are set forth in the opinion of the court.

J. A. MCDOUGALL, for the plaintiffs in error.

A. LINCOLN, J. J. HARDIN and D. A. SMITH, for the defendant in error.

TREAT, J.

This suit was commenced before the probate justice of the peace of Edgar county in June, 1842, by Hiram Van Winkle against the executors of Thomas Wilson, on an account as follows:

+-----------------------------------------------------------------------------+
                ¦“To money paid Thomas Wilson for a note on George Eller, $450,       ¦$395   ¦
                +---------------------------------------------------------------------+-------¦
                ¦with its interest, amounting in the whole, principal and interest, to¦$1000.”¦
                +-----------------------------------------------------------------------------+
                

There was a trial before a jury, a verdict in favor of Van Winkle for $873.45, and a judgment thereon. The executors took an appeal to the circuit court, where the cause was heard by the court, and a judgment rendered in favor of Van Winkle for $1015.15, on the 21st of December, 1844. The executors excepted to the final decision of the court, and embodied the testimony in a bill of exceptions. They now prosecute a writ of error.

The first assignment of error is, that the court erred in rendering judgment against the executors. To determine this correctly, the evidence must be examined. It appeared that on the 11th of March, 1816, George Eller made a promissory note to Wilson for the sum of $450, payable on the 15th of October, 1818, which note Wilson assigned to Van Winkle on the 29th of October, 1818. In February, 1819, Van Winkle instituted an action against Eller, and at the July term, 1819, recovered a judgment therein for the amount of the note and interest. During the same term, Eller filed a bill in chancery against Van Winkle and Wilson, alleging that the note was given in consideration of a tract of land purchased of Wilson, to which Wilson had no title, and praying that the contract might be rescinded, and the judgment enjoined. Eller obtained an injunction staying proceedings on the judgment. Van Winkle, in his answer to the bill, insisted that he was the assignee of the note for a valuable consideration, and denied all fraud. Wilson, in his answer, distinctly recognized the assignment of the note to Van Winkle, and his right to the judgment. The cause was continued till April, 1835, when a final decree was entered, rescinding the contract between Eller and Wilson, and perpetually enjoining the collection of Van Winkle's judgment. The foregoing facts appear from the records of the proceedings in the common law and chancery cases, which were read in evidence without objection. The depositions of two witnesses were read in evidence without objection. One of the witnesses deposed to a conversation between Wilson and Micajah Van Winkle, in the spring of 1837, respecting the Eller note. Wilson employed Micajah to prosecute...