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Merriwether et al. v. Smith et al.

0. B. Ficklin, for the appellee, cited Norris, Peake 394 ; 2 Tuck. Com. 20; 1 Munf. 407.

SMITH, Justice, delivered the opinion of the Court :

This is an action for the use and occupation of land. The cause was submitted to the Court, on evidence, without the intervention of a jury, and judgment rendered for the plaintiff in the Circuit Court.

From the bill of exceptions it is very clear, on the evidence stated in it, that there is nothing to support the judgment. It does not appear

that the relation of landlord and tenant existed between the parties to the action. An offer to hire, and a refusal to pay rent, negatives the idea of a contract, instead of supporting one by inference ; besides there is no proof how long the party occupied the premises, nor was there any promise to pay any specific sum for rent, nor has the value of the use of the ground been shown. So far as there is evidence of value, the defendant has shown it to be fifty dollars per annum, under an arrangement with a third person under whom the defendant below claimed to use the premises and ferry.

We cannot doubt that the judgment should be reversed with costs.

Judgment reversed.

HENRY W. MERRIWETHER and ROBERT L. Hill, im

pleaded with RICHARD B. Hill, appellants, v. SAMUEL SMITH, who sues for the use of CHARLES GREGORY, appellee.

Appeal from Greene.

In an action against the makers, upon a promissory note, the defendants pleaded

that the plaintiff represented to them that he was the owner in fee simple of a certain lot of land, and that if the defendants would execute the note declared on, he would make a good and perfect title to said lot of land, as soon as the note was executed. That they executed the note in consideration of the plaintiff's promise to make theni a good and sufficient deed for said lot of land; and he did not, at the time of making the note, or at any time thereafter, make a good and sufficient deed for said lot; and in truth and in fact he had no title whatever to the same: Held, on demurrer to the declaration, that the plea was bad for duplicity : Held, also, that it was doubtful whether the defendants did not base their allegation that the plaintiff did not execute a good and sufficient deed for

the lot, because he had no title to convey. Semble, That if a deed of any kind had been executed, it should have been dis

tinctly set forth in the plea, and if it contained no covenants of title, then, in the absence of fraud, the question of title would have been at the risk of the grantee ; and if covenants of title were inserted in the deed, it would have been incum

bent on the grantee to have relied on them. It is error to render a judgment against a defendant who is not served with process,

Merriwether et al. v. Smith et al.

and who does not appear, although his co-defendants have been regularly summoned and pleaded to the action, and judgment is rendered against them.

This cause was tried in the Court below, at the August term, 1839, before the Hon. William Thomas.

J. J. HARDIN and R. L. Doyle, for the appellants.
S. T. Logan for the appellee.
LOCKWOOD, Justice, delivered the opinion of the Court :

This was an action of debt brought on a promissory note in favor of Smith, for the use of Gregory, against Merriwether, Richard B. Hill, and Robert L. Hill. The summons was served on Merriwether and Robert L. Hill, and returned not found as to Richard B. Hill. The defendants, Merriwether and Robert L. Hill, pleaded specially that Smith represented to them that he was the owner in fee simple of a certain lot of land, and that if the defendants would execute the note declared on, he would make a good and perfect title to said lot of land, as soon as the note was executed. That they executed the note in consideration of the promise of Smith to make them a good and sufficient deed for said lot of land ; and they aver that he did not, at the time of making the note, or at any time thereafter, make a good and sufficient deed for said lot; and in truth and in fact the said Smith had no title whatever to said lot of land. Wherefore, the consideration of said note had wholly failed.

To this plea Smith demurred in short, by consent, and the defendants below joined in demurrer. The Court below sustained the demurrer, and gave judgment against all three of the defendants. The assignment of errors questions the correctness of the decision in sustaining the demurrer, and in rendering judgment against Richard L. Hill, who had not been served with process, and had not appeared. The plea was clearly bad. It is double, in this, that it alleges that plaintiffs did not convey the lot by a good and sufficient deed, and that he had no title to convey. The plea is also uncertain, in this, that it is doubtful whether the defendants do not base their allegation that the plaintiff did not execute a good and sufficient deed for the lot, because he had no title to convey. If a deed of any kind was executed, that fact should have been distinctly set forth; and if it contained no covenants of title, then in the absence of fraud, the question of title would have been at the risk of the grantee ; and if covenants had been inserted in the deed, it would have been incumbent on the grantee to have relied on them. The Court consequently decided correctly in overruling the special plea. It was, however, error in giving judgment against Richard L. Hill. For ibis error, the judgment is reversed with costs, and the cause remanded with directions to enter judgment against the defendants who were served with

Holbrook v. The Peoria Bridge Company.

Warren v. McHatton.

process, and to enter an order to enable the plaintiff below to take out a scire facias against the defendant not served.

Judgment reversed.

Note. See Kirkland o. Lott & Dailey, Ante; Tyler o. Young et als., Puit. Miller o. Howell, 1 Scam.

Darius B. HOLBROOK, plaintiff in error, v. THE PEORIA

BRIDGE COMPANY, defendants in error.

Error to Peoria.

In suits by corporations the same rules prevail as in suits by natural persons.

Process in favor of a corporation can be sent out of the county where the suit is commenced, only in such cases as it might be so sent in suits in favor of persons.

The only point decided in this case is, that a judgment by default rendered in the Peoria Circuit Court against the defendant, upon process executed in Fayette county, where the declaration contained no averments to authorize the emanation of process to a foreign country, is erroneous, and will be reversed in the Supreme Court.

0. Peters, for the plaintiff in error. W. FRISBY and G. T. METCALF, for the defendants in error.

William B. WARREN, plaintiff in error, v. SAMUEL

McHATTON, defendant in error.

Error to Schuyler.

A motion to amend a petition and summons, is addressed to the sound discretion

of the Court, and the refusal of the Court to grant such motion, cannot be assigned for error.

This cause was heard in the Court below, at the December special term, 1839, before the Hon. Peter Lott.

M. McConnel and J. A. McDougall, for the plaintiff in error, cited 2 Bibb 344 ; 10 Mod. 88; 1 Tomlin's Law Dict. 71 ; Graham's Pract. 524; 3 Cowen 44, note ; 4 Cowen 555.

C. WALKER, for the defendant in error.

Ogden et al. o. Bowen.

Smith, Justice, delivered the opinion of the Court :
This was an action by petition and summons on a promissory

The plaintiff in the Circuit Court asked for leave to amend the petition, by striking out the figures 19 in the description of the note, and inserting 17, which the Court refused.

This is the only ground of error assigned. Whatever may be our opinion on the character of the proposed amendment, and whether the Court ought not to have allowed it, still, as it was an application addressed to the sound discretion of the Court, and that has been exercised, we are not disposed to interfere with its exercise. The refusal to grant the amendment is not cause of error, and cannot be assigned as such. The judgment is affirmed with costs.

Judgment affirmed.

Note. Discretion : See Clemson et al. v. State Bank of Illinois, 1 Scam. 45; Phil. lips v. Dana, Idem; Piggot o. Ramey et al., Idem 145; McKinstry v. Pennoyer et al., Idem 319; Sheldon o. Reihlé et al. Idem; Bruner v. Ingraham, Idem ; Vickers v. Hill et al., Idem 307; Harmison v. Clark et al., Idem 131 ; Wallace v. Jerome, Idem; Garner et al. o. Crenshaw, Idem 143; Gillet et al. v. Stone et al., Idem; Berry o. Wilkinson et al., Idem 164; Crain o. Bailey et al., Idem 321; Emerson o. Clark, Idem.

Mahlon D. OGDEN, ISAAC N. ARNOLD, JOEL N. HAYES,

Simeon Hyde, and FREDERICK T. Hayes, plaintiffs in error, v. Erastus Bowen, defendant in error.

Where an action of assumpsit is commenced against several, and process is served

only on a part of the defendants, it is error to take judgment against those who are not served, and who do not appear.

J. BUTTERFIELD, I. N. ARNOLD, and M. D. OGDEN, for the plaintiffs in error.

G. Spring and G. GOODRICH, for the defendant in error.
Lockwood, Justice, delivered the opinion of the Court :

This was an action of assumpsit brought by Bowen, as endorsee, against Ogden and others, as makers of a promissory note. The summons was regularly served on three of the defendants below; as to one of the other defendants it was returned not found, and no return was made as to the remaining defendant. The three upon whom the summons had been served, pleaded non assumpsit, and the cause was, by agreement of the plaintiff below, and the defendants who had pleaded, submitted to the Court for trial, without a jury, who, after hearing the evidence, gave judgment against the defendants, without designating that the judgment was only given against those defendants who had been served with process, and

5

VOL. II.

Cole o. Chapman.

who had pleaded. Subsequently to the rendition of the judgment, an execution was issued thereon against all five of the defendants.

The assignment of errors questions the correctness of rendering judgment against the defendants who had not been served with process, and who had not appeared.

This was clearly erroneous. At common law, in an action against several, all must be served with process; and if some of the defendants cannot be found, the plaintiff must proceed to outlawry against those not found, before he can take judgment against those that are served with process. To remedy the great delay that would take place in proceeding to outlawry against the defendants not served, the fourth section of the “ Act concerning Practice in Courts of Law,” (1) authorizes the plaintiff to proceed against such defendants as bave been summoned, and take judgment against them.

The act also authorizes the plaintiff, at any time after judgment, to have a summons in the nature of a scire facias, against the defendants not served with the first process, to show cause why they should not be made parties to the judgment.

The course pointed out in the fourth section of the practice act should have been pursued in this case. For this error the judgment below must be reversed with costs; and the cause remanded to the Circuit Court of Cook county, with directions to render a judgment against the defendants who had been served with the summons, and who had pleaded, and with leave to the plaintiff below to take out a scire facias against the other defendants.

Judgment reversed.

William C. COLE, plaintiff in error, v. CHARLES H.

CHAPMAN, defendant in error.

Error to Cook.

In an action upon an arbitration bond, it is no objection to the declaration that it does not show that the bond was executed by both parties, or that a counter bond

was executed Where the action is upon an arbitration bond, it is only necessary to show that the

award was made in pursuance of the condition of the bond, and that the defend. ant has not complied with the award. But the rule is different where the de. fendant subrnits to the award of arbitrators by bond, and the action is on the award itself. In that case it is necessary to state in the declaration a mutual submission ; because the award which is the foundation of the action, being the determination of a third person belween two others, who submit their differences to his decision, it is the subinission which creates the obligation to abide by that determination ; and in that case it is not sufficient to state in the decla. ration that the defendant by bond submitted himself to the award of the arbitrators.

(1) R. L. 487; Gale's Stat. 529.

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