Steele v. Thatcher, 79 Ill. 400 (1875)

Sept. 1875 · Illinois Supreme Court

79 Ill. 400

Harriet Steele v. Susanna Thatcher.

1. Practice—on death of one defendant. On the trial of an action at law against two defendants, after the evidence had been taken, but before the cause was submitted to the jury, the death of one of the defendants being suggested, the court ordered the cause to proceed against the survivor: Held, no error.

2. Same—restoring immaterial record filed, when destroyed. Where there is no plea putting in issue the representative character of the plaintiff, it is a matter of no concern to the defendant whether the record of administration has been restored or not, after being destroyed by fire.

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

This was an action of debt by Susanna Thatcher, administratrix of the estate of David C. Thatcher, deceased, against Harriet Steele and Theodore D. Botsford, upon an injunction bond.

The verdict of the jury is as follows:

“ We, the jury, find the defendant to owe and be indebted unto the plaintiff in the sum of $500, and assess the plaintiff’s damages against the defendant to the sum of $282.50.”

Mr. John W. Waughop, for the appellant.

Mr. Francis C. Russell, and Mr. Geo. L. Thatcher, for the appellee.

Mr. Chief Justice Scott

delivered the opinion of the Court:

The objections insisted upon are purely technical, and do not affect the merits of the case in the slightest degree. On the trial, after the evidence had been taken, but before the cause was submitted to the jury, plaintiff suggested the death of Botsford, one .of the defendants, and the court ordered that the cause proceed against the survivor. In this there was no error.

The verdict is in form. After the suggestion of the death of one of the defendants, there remained but one defendant. The verdict and judgment that followed against the defendant were strictly correct.

The motion to vacate all orders since the 9th of October, 1871, because the records of the probate court had been destroyed, and plaintiff had not restored the files, bond, and letters of administration, was properly overruled. There was no plea putting in issue the right of plaintiff to sue in her capacity as administratrix, and whether the record of her administration had been restored is not a matter that concerns defendant.

There is no error in the record, and the judgment must be affirmed.

Judgment affirmed„