Thompson v. Holt

Appellate Court of Illinois

Thompson v. Holt

183 Ill. App. 113, 1913 Ill. App. LEXIS 1503

CourtAppellate Court of Illinois

DecidedNovember 3, 1913

DocketGen. No. 18,077

StatusPublished

This text of 183 Ill. App. 113 (Thompson v. Holt) 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

Thompson v. Holt, 183 Ill. App. 113, 1913 Ill. App. LEXIS 1503 (Ill. Ct. App. 1913).

Pincite

Opinion

Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff Thompson brought an action of contract of the fourth class in the Municipal Court against Alfred E. and Grace P. Holt and filed with his statement of claim an affidavit showing the nature of his demand and stating that the sum of $421.85 was due him from the defendants. The suit was dismissed as to Grace P. Holt and the other defendant filed an affidavit of defense in which he stated that he believed he had a good defense on the merits to $200.00 of the plaintiff’s demand and that the nature of such defense was the amount due him from the plaintiff for legal services, etc., and that there was due to him from the plaintiff $200.00 for legal services rendered by him to the plaintiff, etc. The court entered judgment for the plaintiff for $221.85, and reserved for future determination and adjudication the matter of the balance of the plaintiff’s demand claimed in his affidavit of claim, and ordered that the court retain jurisdiction of the cause and that the same proceed as to the portion of the plaintiff’s demand in dispute.

Defendant’s motion to strike the cause from the trial calendar was denied.

When the case was reached for trial the defendant objected to any further trial in the cause on the alleged ground that the cause had been disposed of by the judgment for $221.85. The defendant offered no evidence and the court directed a verdict for $211.65 and entered judgment thereon. This was the amount of the balance of $200.00 with interest thereon at five per cent, from August 5, 1910, the date of the first judgment, to September 28, 1911, the date of the second judgment.

Section 55 of the amended Practice Act of 1907 provides that:

“If the affidavit of defense is to only a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as if the suit had been brought therefor; but in such case the court may make such order as to the costs of the suit as may be equitable.” Laws of 1907, p. 456 (J. & A, ¶ 8592).

The language of the statute is plain and leaves no room for construction. Rule 17 of the Municipal Court contains in substance the provisions of amended section 55 of the Practice Act. This section as amended and rule 17 authorize a second judgment in a case where one has been rendered for the amount admitted to be due, although without such statute or rule the plaintiff’s entire claim would have been merged in the first judgment.

We think the second judgment was proper and it is affirmed.

!'Affirmed.

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Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff Thompson brought an action of contract of the fourth class in the Municipal Court against Alfred E. and Grace P. Holt and filed with his statement of claim an affidavit showing the nature of his demand and stating that the sum of $421.85 was due him from the defendants. The suit was dismissed as to Grace P. Holt and the other defendant filed an affidavit of defense in which he stated that he believed he had a good defense on the merits to $200.00 of the plaintiff’s demand and that the nature of such defense was the amount due him from the plaintiff for legal services, etc., and that there was due to him from the plaintiff $200.00 for legal services rendered by him to the plaintiff, etc. The court entered judgment for the plaintiff for $221.85, and reserved for future determination and adjudication the matter of the balance of the plaintiff’s demand claimed in his affidavit of claim, and ordered that the court retain jurisdiction of the cause and that the same proceed as to the portion of the plaintiff’s demand in dispute.

Defendant’s motion to strike the cause from the trial calendar was denied.

When the case was reached for trial the defendant objected to any further trial in the cause on the alleged ground that the cause had been disposed of by the judgment for $221.85. The defendant offered no evidence and the court directed a verdict for $211.65 and entered judgment thereon. This was the amount of the balance of $200.00 with interest thereon at five per cent, from August 5, 1910, the date of the first judgment, to September 28, 1911, the date of the second judgment.

Section 55 of the amended Practice Act of 1907 provides that:

“If the affidavit of defense is to only a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as if the suit had been brought therefor; but in such case the court may make such order as to the costs of the suit as may be equitable.” Laws of 1907, p. 456 (J. & A, ¶ 8592).

The language of the statute is plain and leaves no room for construction. Rule 17 of the Municipal Court contains in substance the provisions of amended section 55 of the Practice Act. This section as amended and rule 17 authorize a second judgment in a case where one has been rendered for the amount admitted to be due, although without such statute or rule the plaintiff’s entire claim would have been merged in the first judgment.

We think the second judgment was proper and it is affirmed.

!'Affirmed.

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Bluebook (online)

183 Ill. App. 113, 1913 Ill. App. LEXIS 1503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-holt-illappct-1913.