Holdom v. James

50 Ill. App. 376, 1893 Ill. App. LEXIS 434

• Court: Appellate Court of Illinois
• Decided: March 18, 1893
• Status: Published

Opinion

Opinion of the Court,

Gary, P. J.

The plaintiff in error is the conservator of one Paul Holz, a lunatic, and was sued and judgment obtained against him by the defendant in error upon a demand against Paul Holz.

Before the revision of 1874 the statute of this State, so far back as we can trace (1823) provided, as cited in Morgan v. Hoyt, 69 Ill. 489, that conservators might be sued as representatives, and the property of the ward sold on executions against them. But all such provisions were left out in that revision, and now if a conservator can be sued on demands against the ward, it must be by virtue of some principle of the common law, or some English statute earlier than the fourth year of James the Eirst.

Ho such principle or statute is cited, nor known to us; the cases are numerous in England where lunatics were defendants, and no question made that the suits were properly brought. Steel v. Alan, 2 Bos. & Pul. 362; Shelford, Lunacy, 407,2 Law Library, 258.

The fact that in this suit the plaintiff in error is described as “conservator” and declared against as “conservator” adds nothing to the law.

As the plaintiff in error was not liable to an action upon a demand against Holz, any inquiry as to the validity of that demand would be irrelevant.

The judgment is unwarranted and is reversed, but as the suit can not be prosecuted, it is useless to remand the case. Ditch v. Edwards, 1 Scam. 127.