Board of Education v. Foley, 90 Ill. App. 494 (1900)

May 4, 1900 · Illinois Appellate Court

90 Ill. App. 494

Board of Education v. Patrick Foley.^*

1. Evidence—Void Warrants. When Competent for Proving Indebtedness.—Where a contract is lawfully made by a school district and an indebtedness incurred under it, a warrant drawn by the proper officers for the purpose of liquidating such indebtedness, although void as a warrant because drawn at a time when there were no funds in the treasury to "pay it, is still competent evidence of the indebtedness in a suit against the district.

Assumpsit, for work and labor, etc. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

Reversed and remanded.

Opinion filed May 4, 1900.

Additional opinion filed on a rehearing July 31, 1900.

Daniel J. McMahon, attorney for appellant.

Thomas McInerny, attorney for appellee; Albert B. Force, of counsel.

* By an oversight this case was reported while a motion for a rehearing was pending. See 88 Ill. App. 470.

Mr. Justice Freeman

delivered the opinion of the court.

A petition for rehearing was filed in this case insisting that the “ warrant, even if void as an order for payment of money, is still such evidence of indebtedness in writing as would bring the case within the statute of limitations.”

By some oversight the former opinion was published Avithout correction of proofs (88 Ill. App. 470), and one or two errors occur.

As therein stated, there Avas evidence tending to shotv that the alleged school Avarrant sued upon Avas issued and delivered on the completion of Avork lawfully ordered, actually done, and accepted by the district. This warrant or voucher was afterward intrusted to the auditor of the appellant, the Board of Education, for examination by the latter, application for payment thereof having been made. The said auditor gave a receipt therefor containing an alleged copy of the Avarrant, and the original appears to have been lost after going into his possession. If not produced by appellant upon proper notice the contents of the lost instrument could have been proven. This Avas not done, and no written evidence of the debt Avas introduced.

The statement as it appears in the published opinion that a void warrant would not be competent evidence of indebtedness against the district or its successor, is undoubtedly true where, as here, neither the Avarrant itself nor proof of its contents is introduced. OtherAvise the statement as printed requires to be modified by adding, that where it appears the contract Avas lawfully made by the district, we know of no reason why the Avarrant is not competent evidence of the debt, though void as a Avarrant for want of proof that it was issued in accordance Avith the statutory requirements. This Avas a suit upon the Avarrant as a Avritten evidence of debt, and brought originally before the justice Avithout written pleas. We do not regard the action as barred by the statute of limitations. Norton v. Brophy, 56 Ill. App. 661.

In the former opinion we are made to say that “ the warrant Avas improperly admitted in evidence. The warrant Avas not introduced at all. The receipt for it containing an alleged copy of the warrant was improperly admitted as there Avas no evidence of the correctness of the copy.

The judgment is reversed and the cause remanded.