Kiely v. McFarland, 13 Ill. App. 642 (1883)

Nov. 16, 1883 · Illinois Appellate Court

13 Ill. App. 642

Matthew Kiely et al. v. J. Clemsen McFarland et al.

As the decision of the court below is in conflict with the rulings in Boynton v. Ball, 105 111. 67, and McLaughlin v. MacLachlan, 12 Bradwell, 631, the cause is reversed and remanded, with instructions to the court below to vacate the order recalling and quashing the execution, and staying proceedings thereunder.

Appeal from the Superior Court óf Cook county; the Hon." Sidney Smith, Judge, presiding.

Opinion filed November 16, 1883.

Mr. C. F. White, for appellants;

that the judgment created a new and distinct debt, which could not be proved against appellees’ estate in the bankrupt court, and hence is not affected by their discharge subsequently obtained, cited Boynton v. Ball, 105 Ill. 67; McLaughlin v. MacLachlan, 12 Bradwell, 631; Bradford v. Rice, 102 Mass. 472; Palmer v. Merrill, 57 Me. 26; In re Gallison, 5 B’k’tcy Reg. 353; In re Williams, 2 B’k’tcy Reg. 229; In re Mansfield, 6 B’k’tcy Reg. 388; In re Maybin, 15 B’k’tcy Reg. 468; McCarthy v. Goodwin, 8 Mo. App. 380; Gardner v. Heugehold, 9 Am. Law Rec. 414; Steadman v. Lee, 61 Ga. 58; Bracken v. Johnson, 4 Cent. L. J. 9; Gould v. Hayden, 63 Ind. 448.

Per Curiam.

This is an appeal from an order of the Superior Court of Cook county, entered at the February term, 1883, recalling and quashing an execution issued out of said court November 29, 1882, upon a judgment rendered in said court January 16, 1880, against appellees and in favor of appellants, and perpetually staying any further proceedings thereunder.

The order from which this appeal is taken was made before the decision of the Supreme Court in Boynton v. Ball, 105 Ill. 67, was announced, and as the question presented by the record is, in all essential respects, the same as in that' case, and also in the case of McLaughlin v. MacLachlan, decided by tliis court at the March term, 1883, 12 Bradwell, 631, and the decision of tlie court below being in conflict with the rulings of those cases, it is reversed, and the cause remanded with instructions to that court, to vacate the order recalling and quashing said execution and staying proceedings thereunder.

Reversed and remanded.