Lux v. Drake, 138 Ill. App. 51 (1908)

Dec. 7, 1908 · Illinois Appellate Court

138 Ill. App. 51

A. W. Lux, Administrator, v. S. P. Drake et al.

This case is controlled by the decision in Drake v. Lux, 125 Ill. App. 469.

Contested claim, in court of probate. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochean, Judge, presiding.

Heard in this court at the May term, 1907.

Affirmed.

Opinion filed December 7, 1908.

E. J. Miller, for appellants.

Harbaugh & Thompson, for appellees.

Mr. Justice Puterbaugh

delivered the opinion of the court.

This controversy, which is before this court for a second time, involves two claims against the estate of appellant’s intestate, the nature of which fully appears from the opinion of this court in Drake v. Lux, 125 December 7, 1907. App. 469. The material facts are there fully recited, rendering a further rehearsal unnecessary. After remandment of the consolidated causes, a second trial was had before the court', without a jury, which resulted in a judgment for $1,421 upon the claim predicated upon the $800 note, and in favor of the estate upon the claim based upon the other notes. The evidence upon both trials was substantially the same, and is practically uncontroverted.

Upon the former appeal we held that inasmuch as upon the day the note here involved was given there was due from Brown & Co., to appellees as principal, a sum largely in excess of $800; the credit arising from such note could well have been applied upon such principal and in the absence of specific directions by the debtor as to the application of said payment, it would be presumed to have been applied upon such part of the indebtedness as was legal and collectible, and that the claim based upon the $800 note should have been allowed.

The rulings of the trial judge as to the law and his findings thereunder were in accordance with our former opinion and the judgment will therefore be affirmed.

Affirmed.