Wallace v. Espy, 68 Ill. 143 (1873)

June 1873 · Illinois Supreme Court

68 Ill. 143

William P. Wallace et al. v. Sidney B. Espy.

Judgment—against one not a party. It is erroneous to render judgment against a person not a party to the suit, for the costs of the suit, and award an execution thereon.

Writ of Error to the Circuit Court of Franklin county; the Hon. A. D. Duff, Judge, presiding.

This Avas an action of replexdn, brought by Henry W. Goodrich, against Sidney B. Espy, to recover the possession of a horse, Avhich the plaintiff, in his affidavit for the Avrit, stated belonged to William P. Wallace and Frank Bingel. A trial was had by the court without a jury, Avho found the issues for the defendant, and aAvarded a return of the property, and rendered judgment against Wallace and Bingel for §25 damages, and costs of the suit, and aAvarded an execution therefor. Wallace and Bingel bring the case to this court by writ of error.

Mr. Alfred C. Duff, and Mr. James M. Gregg, for the plaintiffs in error.

Messrs. Youngblood & Barr, for the defendant in error.

Mr. Chief Justice Breese

delivered the opinion of the Court:

The only question -presented by this record Avhich we have deemed necessary to consider, is, can a judgment be rendered against persons for costs who were not parties to the suit? Both reason and authority answer in the negative.

Wallace and Eingel were not parties to this action, yet a judgment is rendered against them, by name, for the costs of the suit, and execution awarded. On this judgment & fieri facias could issue, and be executed by the sheriff,, to their loss and detriment. Kb power could prevent it.

The judgment is reversed and the cause remanded, with directions to enter judgment against Goodrich, the plaintiff in the action, for the costs, and award execution against him for the same.

Judgment reversed.