Ambler v. Whipple

Appellate Court of Illinois

Ambler v. Whipple

37 Ill. App. 22, 1890 Ill. App. LEXIS 104

CourtAppellate Court of Illinois

DecidedJune 2, 1890

StatusPublished

Cited by1 cases

This text of 37 Ill. App. 22 (Ambler v. Whipple) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ambler v. Whipple, 37 Ill. App. 22, 1890 Ill. App. LEXIS 104 (Ill. Ct. App. 1890).

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Opinion

Garnett J.

This action of debt was brought by appellant on the 17th day of July, 1885, on a judgment rendered June 17, 1880, by the Supreme Court of the District of Columbia, against appellee and Thomas S. Dickinson. Appellee alone having been served with process, appeared and set up among other defenses, that the cause of action did not accrue within five years before this suit was commenced. Briefly stated, the real controversy is whether the judgment sued on is one of the causes of action described in See. 15, Chap. 83, Rev. Stat. If it is, the right of action was barred one month before this suit was commenced.

Construing this section of the statute in Bemis v. Stanley, 93 Ill. 230, which was an action on a judgment rendered in Ohio, the decision of the court was: “ Our view of the question is, that Section 15 is broad enough to embrace the judgment sued upon in this case; that the suit on the judgment is a civil action not otherwise specially provided for, and hence, barred in five years by the terms and conditions of the statute.” Jefferson v. Alexander, 84 Ill. 278, decides that the judgment of a court of record is an instrument of writing, a copy of which is required by the Practice Act to be filed with the declaration in a suit on the judgment. If it is an instrument in writing, it would also seem to be an evidence of indebtedness in writing, and governed by Sec. 16, Chap. 83, which makes the limitation for indebtedness of that character ten years, and thus an apparent conflict arises between Jefferson v. Alexander, and Bemis v. Stanley. The latter, however, is the latest declaration of the law, and mature consideration has not convinced ns that this court should depart from the law, as there held, although new reasons are presented for a contrary holding which do not appear to have been then considered.

Under such circumstances, while we may entertain strong doubts, we think it more consistent with the duty of a subordinate court to leave the question for the court of final resort.

The judgment is affirmed. Judgment affirmed.

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Garnett J.

This action of debt was brought by appellant on the 17th day of July, 1885, on a judgment rendered June 17, 1880, by the Supreme Court of the District of Columbia, against appellee and Thomas S. Dickinson. Appellee alone having been served with process, appeared and set up among other defenses, that the cause of action did not accrue within five years before this suit was commenced. Briefly stated, the real controversy is whether the judgment sued on is one of the causes of action described in See. 15, Chap. 83, Rev. Stat. If it is, the right of action was barred one month before this suit was commenced.

Construing this section of the statute in Bemis v. Stanley, 93 Ill. 230, which was an action on a judgment rendered in Ohio, the decision of the court was: “ Our view of the question is, that Section 15 is broad enough to embrace the judgment sued upon in this case; that the suit on the judgment is a civil action not otherwise specially provided for, and hence, barred in five years by the terms and conditions of the statute.” Jefferson v. Alexander, 84 Ill. 278, decides that the judgment of a court of record is an instrument of writing, a copy of which is required by the Practice Act to be filed with the declaration in a suit on the judgment. If it is an instrument in writing, it would also seem to be an evidence of indebtedness in writing, and governed by Sec. 16, Chap. 83, which makes the limitation for indebtedness of that character ten years, and thus an apparent conflict arises between Jefferson v. Alexander, and Bemis v. Stanley. The latter, however, is the latest declaration of the law, and mature consideration has not convinced ns that this court should depart from the law, as there held, although new reasons are presented for a contrary holding which do not appear to have been then considered.

Under such circumstances, while we may entertain strong doubts, we think it more consistent with the duty of a subordinate court to leave the question for the court of final resort.

The judgment is affirmed. Judgment affirmed.

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37 Ill. App. 22, 1890 Ill. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ambler-v-whipple-illappct-1890.

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