Fuqua v. Robinson, 10 Ill. 128, 5 Gilm. 128 (1848)

Dec. 1848 · Illinois Supreme Court

10 Ill. 128, 5 Gilm. 128

Edward Fuqua et al., plaintiffs in error, v. David Robinson, defendant in error.

Error to Warren.

In a bill in Chancery for an injunction to stay proceedings upon a judgment at law, a payment of two specified sums thereon was alleged, one of which was admitted, and the other denied by the answer and not pioved. Both sums were decreed by the Circuit Court to be credited upon the judgment: Helá, that the decree was erroneous as to the latter sum.

Bill for an injunction, &c., in the Warren Circuit Court, brought by the defendant in error against the plaintiffs in error, and heard before the Hon. Norman H. Purple. A decree was entered at the November term, 1846, allowing certain credits upon the judgment enjoined, &c. The defendants below prosecuted a writ of error thereon.

.The defendant in this Court having neglected to comply with a rule requiring him to join in the errors assigned, the cause was argued ex parte by J. Manning for the plaintiffs in error.

The Opinion of the Court was delivered by

Treat, C. J.

This case is 'free from difficulty. The bill alleges a payment of forty five dollars and forty cents on ■the judgment, on the ninth of June, 1842,-and a further payment of two hundred and fifty one dollars and fifty six cents, on the seventeenth of July, 1844. The first allegation is admitted by the answer; the second is positively denied. There is no proof in the case sustaining the charge of payment. The Circuit Court decreed that the judgment should be credited with both amounts. The decree was erroneous as respects the larger sum. It will be reversed, and the proper decree entered in this Court.

The following order and decree were entered accordingly: • This day came again the plaintiffs in error by their attorney, and the Court being now sufficiently advised in the premises, is of the opinion that in the record and proceedings had in this cause in the Circuit Court there is manifest error; it is therefore ordered and adjudged that the decree of the Circuit Court be reversed, and wholly for nothing esteemed; and this Court proceeding to render such decree as should have been entered by the Circuit Court, it is ordered and decreed, that the judgment in the pleadings in this cause mentioned in favor of Edward Fuqua, and against David Robinson and Matthew J. Cox, be credited with the sum of forty five dollars and forty cents, as of the ninth day of June, 1842; it is further ordered and decreed, that the • levy made by virtue of the execution issued on said judgment, on the fifth day of December, 1843, be set aside and for nought held, and that execution issue on said judgment for the balance due thereon. It is further ordered and decreed, that the defendant in error pay one half of the costs in the Circuit Court; and that the plaintiffs in error pay the remaining half thereof. It is- further ordered and decreed, that the plaintiffs in error recover of the defendant in error their costs in this behalf in this Court expended, and that they have execution therefor.