Biebel v. Kuttnauer

147 Ill. App. 627, 1909 Ill. App. LEXIS 142

• Court: Appellate Court of Illinois
• Decided: March 26, 1909
• Docket: Gen. No. 14,475
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The question whether malice was of the gist of the action in which the judgment was rendered on which the ca sa was issued is to be determined from an inspection of the record. We tMnfe that malice was of the gist of said action. The declaration alleged that the defendant wilfully and fraudulently converted to Ms own use, without the consent of the plaintiffs, Ms employers, money of the plaintiffs which had come to his possession under Ms contract of employment, with wMch to injure and defraud the plaintiffs. The jury found the defendant “guilty of wrongfully, wilfully and fraudulently converting to Ms own use the sum of $1,555.30, the money and property of the plaintiffs, with which to cheat and defraud the plaintiffs out of the same”, and the court entered judgment on the verdict. The question of malice on the part of the defendant was settled in the former suit, and having been once determined, the doctrine of res adjudícala applies and the judgment is a bar to any further dispute of that question between the parties. Jernberg v. Mix, 199 Ill. 254; Bank of Flora, v. Burkett, 101 id. 391; Penoyer v. The People, 105 Ill. App. 481; Masterson v. Furman, 89 id. 291; Bechman v. Menge, 82 id. 228; Beattau v. Evans, 57 id. 311.

The petitioner was released on bail pending the hearing of the petition, and on the dismissal of his petition on the hearing the order that he be remanded to the custody of the sheriff was proper. Jernberg v. Mix supra; People v. Hanchett, 111 Ill. 90.

The judgment of the County Court will be affirmed.

Affirmed.