125 Ill. 468 | Ill. | 1888
delivered the opinion of the Court:
It is first contended by appellant that the circuit court erred in sustaining the motion of plaintiff, made at the October term, 1886, to vacate the judgment rendered against appellant’s co-defendants in this cause at the previous March term, and in overruling the cross-motion of appellant and his co-defendants to strike the cause from the docket.
This action was brought against the three defendants as partners,—as joint promisors; and where an action is brought upon a liability of that character, the law is well settled that a judgment against one or two of the joint promisors will be a bar to a future recovery against one or all of the remaining joint contractors. (Wann v. McNulty, 2 Gilm. 355; Thompson v. Emmert, 15 Ill. 415; Mitchell v. Brewster, 28 id. 167; Peters v. Sanford, 1 Denio, 224; Ward v. Johnson, 13 Mass. 148.) The action of the court, therefore, in vacating the judgment when it was vacated, materially affected the rights of appellant, because no recovery could be had against him so long as the judgment remained in full force against the other two defendants. It becomes important, therefore, to determine whether the court had the power to set aside the judgment at the October term, 1886.
It will be remembered that the judgment had been rendered against the two defendants at the March term, and that a June term had intervened, no steps having been taken at the March or June term to vacate the judgment. The general rule is, where a judgment has been rendered at a term of court, and the court adjourns for the term, the court may, at a second term, on notice, amend the judgment in a mere formal respect; but after the term closes, the court has no power to vacate or set aside a judgment. (Cook v. Wood, 24 Ill. 295.) There are cases where it has been held, where the motion to vacate a judgment is made at the same term at which it is rendered, and the motion is continued until a subsequent term, the court has power at such subsequent term to allow the motion and vacate the judgment. Hibbard v. Mueller, 86 Ill. 256, and Hearson v. Graudine, 87 id. 115, so hold. But the doctrine of those eases has no application here, as no motion to vacate was made at the term when the judgment was entered. When the two defendants, at the March term, withdrew their pleas, the court might properly have entered their default; but the court had no authority to render a judgment against them until. the cause was disposed of as to the third defendant, and there can be no doubt but the judgment was erroneous.
There is, however, one consideration which, in our judgment, has a material bearing on the question. Albert W. Jansen, one of the defendants, on April 5, 1886, entered a motion to remove the cause to the United States Circuit Court for the Southern District of Illinois. In connection with the motion a petition, bond and affidavit were filed. No further steps were taken in the case until the 7th day of April, two days later, when the other defendants, Frederick G. Jansen and Charles C. Jansen, withdrew their pleas and appearance, and then default was entered, and judgment rendered against them for the amount of the note and interest, upon which the action was brought. At the same time, and as a part of the same order wherein judgment was rendered against the two defendants, the court entered an order, as follows: “And this cause now coming on to be heard, upon the motion of the defendant Albert W. Jansen to remove this cause to the Circuit Court of the United States for the Southern District of Illinois, heretofore entered herein, and the court * * * doth order that said motion be sustained. And it is further ordered by the court, that this cause be removed to the Circuit Court of the United States for the Southern District of Illinois.” It thus appears that by one order the court rendered a judgment against two of the defendants, and at the same time removed the cause to the Federal court. The cause was not removed as to the defendant Albert W. Jansen alone, but the entire cause,—the action as originally commenced,—was transferred to the Federal court. It is true, the order of removal was erroneous, as 'held in Fraser v. Jennison, 16 Otto, 191; but that does not affect the question involved. After the order of removal had been entered, the jurisdiction of the circuit court in the cause was suspended. That court thereafter, and while the cause was pending in the Federal court, had no power to enter any order or judgment in the cause. Had a motion been made at the March term to vacate the judgment against the two defendants, the court would have been powerless to entertain it, (Dillon on Removal of Causes, sec. 87,) because the cause had been transferred to the Federal court, and was pending in that court. The order of removal suspended all power or jurisdiction over the cause until such time as the cause should be transferred from the Federal back to the circuit court. This occurred on October 15, when the cause was remanded to the circuit court. On October 25, the first day of the October term of the circuit court, the plaintiff entered her motion to vacate the judgment rendered against the two defendants at the March term of court. This was the first time after the judgment was rendered that the circuit court could entertain jurisdiction to hear and determine the application to vacate the judgment, and we think the motion, under the facts of this case, was in apt time. When the cause was remanded the court assumed the same jurisdiction over the cause that it had at the time of removal, and could then entertain any motion which would have been proper before removal. In conclusion, we are of opinion that the court did not err in vacating the judgment.
From what has been said, it follows that the ruling of the court on the admission of evidence and the instructions to the jury on this branch of the case, was correct.
It is also contended that the court erred in admitting in evidence the note of February 1, 1881, which had been surrendered when the new note was given in renewal. The giving of one promissory note in lieu of another does not necessarily operate as a payment. In order to have that effect it must be so understood and intended by the parties. (Yates v. Valentine, 71 Ill. 644; Thompson v. Briggs, 28 N. H. 40; Hill v. Morey, 49 id. 268.) In the last case cited, where the facts are quite similar to the facts in this case, it is said: . “In the case of the dissolution of a firm by the retirement of some of the members, and a continuance of the business by the others in the same name, the giving and receiving of a note by the new firm, for a debt of the old firm, will not be payment, unless it was so agreed by the parties.” We think the court was right in deciding that the note was competent evidence for the jury. Whether it was paid or not was a question to be determined from all the evidence.
Several other questions have been raised in regard to the admission and exclusion of evidence, but they are all of a technical character, and have no direct bearing on the merits of the case, and it will serve no useful purpose to consume time in a discussion of them here. On the whole, the ruling of the court on the admission and exclusion of evidence we think was substantially correct.
It is also claimed that the court erred in permitting counsel for plaintiff to read to the jury, in his argument, the instructions which he proposed to ask the court to give to the jury, and in making comments thereon. We are not aware that the course pursued in the argument has been practiced to any extent in any part of the State, and we are not inclined to favor it; but at the same time, we can not say that what counsel did was error for which the judgment should be reversed. Much latitude is always allowed in the argument of causes before a jury. Counsel have the right to state to the jury the propositions of law involved in the case upon which they rely, and predicate the argument upon such propositions. If this may be done, upon the same principle we see no good reason why counsel, in the argument, may not read to the jury the instructions which they intend to ask, and insist before the jury that such instructions contain the law involved in the case. Where this course is pursued, the attorney takes the risk of having his argument condemned by the refusal of the court to give the instructions.
The decision of the court in giving, refusing and modifying instructions, is relied upon as error. After a careful consideration of the instructions and the questions raised by counsel, without entering upon a critical review of objections urged to the decision of the court, we deem it sufficient to say that we find no substantial error in the ruling of the court in this regard. All the law involved in the ease was fully given to the jury, and we see nothing in the instructions calculated to mislead, and although slight errors may have been committed, nothing of such magnitude occurred as to authorize a reversal of the judgment.
The judgment of the Appellate Court will he affirmed.
• Judgment affirmed.
