Bœhm v. Bœhm

61 Ill. 140

• Court: Illinois Supreme Court
• Decided: September 15, 1871
• Status: Published

Opinion

Per Curiam :

The only question presented by this record is, as to the construction of the 2d section of the act of 1869, amending the practice act. That section reads as follows :

“In all actions brought against several defendants, when the plaintiff shall fail to establish his case against any one or more defendants, who shall put their joint liability in issue by proper pleading as now required, judgment shall be given in favor of such defendant or defendants, but .the plaintiff shall, notwithstanding, be entitled to judgment against such other defendant or defendants as may have made the contract sued on : Prodded, that this action shall only apply to written contracts, when the execution of the instrument sued on shall be put in issue by plea or pleas.”

The question is, whether this section applies to verbal, or only to Avritten contracts. The majority of the court are of opinion that it applies only to Avritten contracts. The act is, in any view, drawn in a very careless manner, and it is difficult to see what, on any construction, is the object of the proviso, since the law could necessarily apply to suits, on written contracts only where the execution of the instrument had been put in issue by the pleadings. The body of the section, however, shows that it was intended merely as an amendment of the old statute, which required persons, sued as partners, or as joint makers of a written instrument, to put the partnership or the joint liability in issue by a plea verified by affidavit, if they wished to raise this question on the trial. Except where the defendants were sued" as partners, this act applied only to suits upon written instruments, and the act under consideration was designed merely as an amendment to the former act by giving the plaintiff a right to a judgment against those defendants as to whom he could prove a joint liability, suffering a judgment against himself as to the others. The act, in terms, refers to cases in which the defendants have put their joint liability in issue “by proper pleading as now required,” that is, by plea verified by affidavit. As the old law had no application to suits upon parol contracts, except in suits against partners, we must hold that this has none.

The judgment is reversed and the cause remanded.

- Judgment reversed.