Thayer, Aldrich & Co. v. Finley

Illinois Supreme Court

Thayer, Aldrich & Co. v. Finley

36 Ill. 262

CourtIllinois Supreme Court

DecidedNovember 15, 1864

StatusPublished

Cited by11 cases

This text of 36 Ill. 262 (Thayer, Aldrich & Co. v. Finley) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thayer, Aldrich & Co. v. Finley, 36 Ill. 262 (Ill. 1864).

Pincite

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This record presents these questions : first, can the plaintiff prosecute a writ of error to reverse a judgment in his favor ? and, second, is it regular to enter a confession of judgment on a cognovit when the record fails to show an appearance by the plaintiff, or his consent to such entry ?

As to the first question, it has been long settled on principle, and in practice, that a party may reverse a judgment in his own favor. This is the doctrine of the books. 2 Tidd’s Practice, 1134; Teal v. Russell et al., 2 Scam. 319; Jones et al. v. Wight et al., 4 ib. 338; Davidson, Admix, v. Bond et al., 12 Ill. 84; Fuller v. Robb, 26 Ill. 246 ; Capron v. Van Noorden, 2 Cranch, 126.

As to the second question, we are of opinion, the record should show the confession was with the assent of the plaintiff, or that he appeared in the case by filing a declaration or otherwise. Were this not so, great injustice might be done the plaintiff by collusion of the defendant with an attorney of the court, by which a judgment, less in amount than the sum really due, might be entered up unknown to the plaintiff, and to his great injury. The record fails to show that this confession of judgment was with the assent of the plaintiff, or that he was represented in court in any way or form.

The defendants, however, contend that the record shows an execution and a satisfaction of the judgment by the sale of land.

To this it may be replied, the execution is no part of the record, or of the judgment on which error is alleged, and cannot be regarded in considering the questions arising on the record. The proper way to bring the question of satisfaction of the judgment before this court, was by plea. Like a release it should have been pleaded.

For the errors apparent on the record, the judgment must be reversed and the cause remanded.

Judgment reversed.

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Mr. Justice Breese

delivered the opinion of the Court:

This record presents these questions : first, can the plaintiff prosecute a writ of error to reverse a judgment in his favor ? and, second, is it regular to enter a confession of judgment on a cognovit when the record fails to show an appearance by the plaintiff, or his consent to such entry ?

As to the first question, it has been long settled on principle, and in practice, that a party may reverse a judgment in his own favor. This is the doctrine of the books. 2 Tidd’s Practice, 1134; Teal v. Russell et al., 2 Scam. 319; Jones et al. v. Wight et al., 4 ib. 338; Davidson, Admix, v. Bond et al., 12 Ill. 84; Fuller v. Robb, 26 Ill. 246 ; Capron v. Van Noorden, 2 Cranch, 126.

As to the second question, we are of opinion, the record should show the confession was with the assent of the plaintiff, or that he appeared in the case by filing a declaration or otherwise. Were this not so, great injustice might be done the plaintiff by collusion of the defendant with an attorney of the court, by which a judgment, less in amount than the sum really due, might be entered up unknown to the plaintiff, and to his great injury. The record fails to show that this confession of judgment was with the assent of the plaintiff, or that he was represented in court in any way or form.

The defendants, however, contend that the record shows an execution and a satisfaction of the judgment by the sale of land.

To this it may be replied, the execution is no part of the record, or of the judgment on which error is alleged, and cannot be regarded in considering the questions arising on the record. The proper way to bring the question of satisfaction of the judgment before this court, was by plea. Like a release it should have been pleaded.

For the errors apparent on the record, the judgment must be reversed and the cause remanded.

Judgment reversed.

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Bluebook (online)

36 Ill. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thayer-aldrich-co-v-finley-ill-1864.

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