Mooney v. Valentynowicz, 181 Ill. App. 428 (1913)

June 24, 1913 · Illinois Appellate Court · Gen. No. 17,826

181 Ill. App. 428

Lillie Bertha Mooney, Defendant in Error, v. Charles A. Valentynowicz, Plaintiff in Error.

Gen. No. 17,826.

Negotiable instruments—when payment of note not shown. Held, that payment of a note on which action was brought was not shown.

Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1911.

Affirmed on remittitur.

Opinion filed June 24, 1913.

Rehearing denied July 8, 1913.

J. Amos Blume, for plaintiff in error.

George J. Gilbert, for defendant in error.

Mr. Justice Clark

delivered the opinion of the court.

Judgment was entered on a note for $126, in which judgment an attorney’s fee of $15 was incorporated. This amount is mentioned in the cognovit, and the trial judge evidently did not observe that there was no provision in the note itself for attorney’s fees. After judgment was entered it was opened and testimony heard on the question as to whether or not the note had been paid.

We think the court was correct in holding that payment had not been shown. The judgment will therefore be affirmed provided the defendant in error enters in this court within ten days a remittitur in the sum of $15. Otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur; otherwise reversed and remanded.

Memittitur filed and judgment affirmed June 26,1913.