Rust v. Frothingham & Fort, 1 Ill. 331, 1 Breese 331 (1830)

Dec. 1830 · Illinois Supreme Court

1 Ill. 331, 1 Breese 331

Bradley Rust, Plaintiff in Error, v. Frothingham and Fort, Defendants in Error.

ERROR TO MONROE.

A variance between the writ and declaration, can not be reached by demurrer.

This court can not look at a record which was introduced as evidence in the court below, unless the same is made a part of the record by bill of exceptions.

A record from another state is conclusive evidence of the debt claimed—it imports absolute verity, and nothing can be alleged against it.

A plea to an action of debt upon a record, stating “that the defendant had not been served with process, had never appeared, or authorized an attorney to appear for him," would be good, yet if the record shows that he did appear, &c., the record can not be contradicted by evidence.

The appearance of an attorney without authority is good.

A writ of inquiry is not necessary in any case, where the damages can be ascertained by computation.

Opinion of the Court by

Justice Lockwood.

This was an action of debt, commenced in the Monroe circuit court by Frothingham and Fort against Rust, on a record of a judgment obtained in the state of New York. The declaration is in the usual form. The defendant below demurred to the declaration, to which there was a joinder. The demurrer was overruled, and the declaration held to be good. Subsequently, the defendant pleaded nul tiel record, payment and a special plea, alleging that no service of process had been made on defendant below in New York, and that the appearance stated in the record to have been for defendant by attorneys in the New York court, was without the authority of defendant. To this last plea the plaintiffs below demurred, and the demurrer was sustained. Subsequently, the defendant withdrew the plea of payment, and the court tried the issue of nul tiel record, which was found for the plaintiffs, and judgment rendered for the debt mentioned in the declaration, amounting to 254 dollars, 60 cents, and also gave damages amounting to 100 dollars, being less than six per cent, interest on the debt, from the rendition of the judgment in New York, to the rendition of the judgment below. To reverse this judgment, a writ of error has been brought to this court.

A variety of errors have been assigned, which will be noticed in the order they were argued.

1. It is assigned for error, that the court below overruled the defendant’s demurrer to the plaintiff’s declaration. The reason urged for sustaining the demurrer, was that there was a few cents difference between the statement of the debt in the writ and in the declaration. Can this variance be reached by demurrer ? The practice of courts for a long time has been to give relief against irregular process by motion, and no good reason is perceived why this long established practice should be varied from. It is also a rule of practice, that if a party appears and pleads, a vicious process is aided. The objection, however, to the process was such, that the court below would have permitted it to be amended. A demurrer only goes to the sufficiency of the declaration, and that being good on its face, the demurrer was properly overruled. ⁽¹⁾

2. It is also assigned for error, that the plea of nul tiel record was found for plaintiff below. Whether this issue was correctly decided, can not be ascertained by this court. If the defendant wished to have excepted to th.e record introduced as evidence in the court below, he should have taken a bill of exceptions. ⁽²⁾

3. That the defendant’s special plea was decided to be bad. This plea admits that the record states that attorneys did appear for defendant and defend the suit. Can a party aver any thing which contradicts the record ? A record imports absolute verity, and nothing can be averred against it. This court has repeatedly decided, that the records of sister states are to be considered as conclusive evidence, unless, perhaps, in cases where from the record and proceedings it should appear that the party had no notice. If the plea in this case had only averred that he had not been served with process, and that he had never appeared, or authorized an attorney to appear for him, the plea would probably have been good. Yet, on the trial of the cause, if the record showed either a service of process, or an appearance by attorney, the defendant would not have been permitted to contradict the record by evidence. But this plea admits that the record shows an appearance by attorney, and then denies the truth of the averment in the record. This can not be done. The pre- ■ sumption in favor of records is, that the court where the cause is tried will not permit an attorney to appear unless they are satisfied that he has authority from the party. This rule is necessary for the safety and validity of judicial proceedings. Should an attorney appear for a party without authority, he would be liable in damages to the party injured, and would also subject himself to be punished for a contempt. This is considered sufficient to protect parties from the officious interference of attorneys. Should an attorney, however, appear without authority, and the party sustain an injury beyond the ability of the attorney to compensate, it is probable that a court of equity might set aside a judgment obtained in consequence of such wrongful appearance ; but at law, the appearance is good, and can not be contradicted. ⁽³⁾

Semple and Breese, for plaintiff in error.

Cowles, for defendants in error.

4. It is also assigned for error, that the court entered judgment for damages without calling a jury, or issuing a writ of inquiry. A writ of inquiry at common law only issues where the judgment is interlocutory, but the judgment in debt is final.

A writ of inquiry is, however, unnecessary in any case, where the damages can be ascertained by computation. Our statute does not apply to this case. Had the plaintiff averred in his declaration, that he was, by the laws of New York, entitled to a higher rate of interest than he was entitled to by the laws of this state, there then would have been a propriety in calling a jury to ascertain what interest was allowed in New York; but even in such case, the court would have a right to ascertain the fact, and give the damages without the intervention of a jury. This objection, then, forms no ground of error.

The other errors assigned are not deemed of sufficient importance to require any notice. The errors assigned, being, in the opinion of the court, insufficient, the judgment is affirmed with costs, ^(a)

Judgment affirmed.

(1) No advantage can be taken of a variance between the writ and declaration, on a writ of error. It must be taken advantage of by a plea in abatement, or by a motion. Prince v. Lamb, post. Cruikshank v. Brown, 5 Gilm., 75, Weld v. Hubbard, 11 Ill., 574. Rowley v. Berrian, 12 Ill., 202.

(2) See note to Browder v. Johnson, ante, p. 96.

(3) See note 3, to the case of Kimmel v. Schultz et al., ante, p. 169.

(a) Greenup and Conway v. Woodworth, ante, p. 232.

In an action upon a judgment in another state, the defendant can not plead any fact in bar, which contradicts the record on which the suit is brought. 1 Peters’ Cir. Court Rep., 155.

In an action of debt on a judgment, the interest on the judgment may be computed and made part of the judgment in Louisiana, without a writ of inquiry or the intervention of a jury. Mayhew v. Thatcher et al., 6 Wheat., 129.