Toupin v. Gargnier, 12 Ill. 79 (1850)

Nov. 1850 · Illinois Supreme Court

12 Ill. 79

Moise Toupin and others, Appellants, v. Olivier Gargnier, Appellee.

APPEAL FROM ST. CLAIR.

Where the parties to a suit, agree to dismiss the same, in the absence of all-reasonable doubt as to the making of the agreement, the Court should carry the agreement into effect; whether it be reduced to writing and signed by the parties, or exists in parol.

This was an action of trespass, vi et armis, brought in the St. Clair Circuit Court by the appellee, which was tried by a jury Underwood, Judge, presiding, at the September term, 1850. A verdict was found for the appellee for sixty dollars. A motion for a new trial was entered by appellants. Before judgment, the appellees entered a motion to dismiss the suit, and produced and filed two affidavits in support of the motion, showing that an agreement had been made between appellee and one of the appellants, that the case should be dismissed as to all the appellants and that each party should pay his own costs. This motion was resisted, upon the ground that the verdict had been assigned by the appellee, and affidavits were produced and filed with the assignment of the verdict, showing the date of the transaction. The motion to dismiss was overruled, and judgment was rendered upon the verdict. Thereupon the defendants below instituted this appeal.

G. ICoerxer, for Appellants.

J. Uxderwood, for Appellee.

Treat, C. J.

In our opinion the Court erred in not sustaining the motion to dismiss. It clearly appeared that the parties had agreed, while the case was pending and undetermined, and before the assignment to Underwood and Snyder was executed, that the suit should be dismissed, each party to pay his own costs. Two witnesses swore positively that sneli an agreement was made, and there was nothing in the case calculated to impeach the correctness of their statements. The existence of the agreement was not even denied by the plaintiff, as it probably would have been, if there had been any question respecting the true character of the transaction between the párties. The - Court, in the absence of all reasonable doubt as to the making of agreement, was: as much bound to carry it into effect as if it'had been reduced to writing and signed by the parties.

The judgment of the Circuit Court,., must be reversed with costs; and the cause will be -remanded, with instructions to that Court,--to enter an order of dismissal, pursuant td the agreement of the 'parties', •'

Judgment' reversed.