211 Ill. App. 163 | Ill. App. Ct. | 1918
delivered the opinion of the court.
This was an action of assumpsit in the Circuit Court of Wabash county to the November term, A. D. 1915, in which defendant in error, D. E. Keen, was plaintiff, and plaintiff in error, George S. Clarke, Melchoir Leipold and Elbert Epler, were defendants.
The declaration was as follows: “D. E. Keen, by Frank Farnoff his attorney, complains of Melchoir Leipold, George S. Clarke and Elbert Epler, of a plea of trespass on the case on promises.
“For that whereas the said Melchoir Leipold, on, to wit, the twenty-eighth day of February, in the year of our Lord one thousand nine hundred thirteen, in the county aforesaid, made his promissory note and delivered the same to the said George S. Clarke, and then and there promised to pay the said George S. Clarke, or order, on the twenty-eighth day of February, in the year of nineteen hundred fifteen, the sum of two thousand five hundred ($2,500.00) dollars, for value received, with interest thereon at the rate of six (6) per cent, per annum.
“And thereupon the said defendant,. George S. Clarke, on the day first aforesaid, indorsed and delivered the said note to the plaintiff.
“And thereafter, on, to wit, the seventeenth day of May, in the year of nineteen hundred thirteen, by virtue of a contract by and between the defendant Mel-choir Leipold and the defendant Elbert Epler, and in consideration of certain property therein mentioned, paid by the said Melchoir Leipold, the said Elbert Epler assumed and agreed to pay the said note.
“By means whereof the said defendants then and there, to wit, at the time last aforesaid, became liable to pay to the plaintiff the amount of the said note, according to the tenor and effect thereof.
“And, being so liable, the defendants, in consideration thereof, then and there promised the plaintiff to pay him the said amount, according to the tenor and effect of the said note.
“Yet, although the day of payment in the said note specified has elapsed, the defendants have not paid to the plaintiff the amount of said note, or any part thereof, but refuse so to do.
“Nor have the defendants, though requested, paid to the plaintiff the several other sums of money above specified, or either of them, or any part thereof, but refuse to pay him the same.
“To the damage of the plaintiff of three thousand five hundred dollars, and therefore he brings his suit, etc.”
A copy of a warranty deed conveying certain lands from Melchoir Leipold to Elbert Epler was filed with the declaration. The following copy of a promissory note was also filed with the declaration: “This note is secured by real estate mortgage on 511 acres of land in Cotton Grove Tp., Saline Co., Ill. No. - Mt. Carmel, Ill., Feby. 28th, 1913. $2500.00.
“Twenty-four months after date, for value received, we or either of us, promise to pay to the order of Geo. S. Clarke, the sum of twenty-five hundred 00/100 Dollars. Payable at American National Bank, Mt. Carmel, Ill.
‘1 Above mentioned sum and six per cent, from date, and ten per cent, of the face of this note as attorney fee, and to release all errors, waive all proceedings in the nature of a stay of execution, appeal or petition in error.
“The endorsers, signers and guarantors severally waive presentment for payment, protest, or notice of protest, and notice of non-payment, of this note, and dilig’ence in bringing suit against any party to this note, and sureties agree that time of payment may be extended without notice or other consent.
“Interest payable annually at 6% from date.
“Privilege is hereby reserved to pay on this note $100 or any multiple thereof, prior to its maturity on any interest maturing date. In case such payments are made the interest on the amounts paid shall cease.
..................[Seal]
Melchoir Leipold [Seal]
........._.........[Seal]”
Indorsed on the back of the note is the following: “Geo. S. Clarke, March, 1914, Recd. $100.00 int. on within note, D. E. Keen.”
There was personal sendee on George S. Clarke, and the written appearance of Melchoir Leipold was entered, but no service was had on Elbert Epler. At said term the following judgment was rendered: “And now on this day comes the plaintiff, by Fornoff & Willhite, and the defendants, by Allen Walker and H. P. French, their attorneys, and now, on this day, written entry of appearance of the defendant, Leipold, filed, personal service is shown on the defendant, Geo. S. Clarke; defendants, Leipold and Clarke are three times solemnly called and defaulted; whereupon the court hears the evidence offered, and being fully advised in the premises, finds amount due for principal and interest to be $2,758.75, whereupon the court enters judgment on finding in favor of D. E. Keen, plaintiff, and against said defendants, Melchoir Leipold and George S. Clarke, for said sum of $2,758.75 and costs, and execution awarded and sci. fa. awarded as to defendant, Elbert Epler, to issue returnable on first day of the next term of this court, continued as to sci. fa.”
George S. Clarke, one of the defendants below, brings the case into this court by writ of error. Two questions are raised by the assignment of error and argument in this case, viz.: Was the declaration sufficient to support the judgment and was the judgment in proper form? The contention of plaintiff in error is true, as a rule of law, that a default admits only that the facts alleged in the declaration are true, and not that they constitute a cause of action, and if in law they do not constitute a cause of action, no judgment should be rendered on the declaration by default. It is also contended by plaintiff in error that in order to charge the indorser of a promissory note it is necessary to prove demand of the maker and notice of nonpayment and dishonor, and that the declaration in this case is insufficient to support the judgment against plaintiff in error, who was an indorser, for the reason that these facts were not alleged. The declaration alleged the indorsement by the defendant George S. Clarke, who was the payee thereof to the plaintiff, D. E. Keen, that the defendants to the suit, in consideration of their alleged liability to pay the note, promised the plaintiff to pay him the amount thereof according to the tenor and effect of said note; that although requested to do so, the said defendants have not paid the sums of money specified or either of them or any part thereof, but refuse to pay the same to the plaintiff. Plaintiff in error was defaulted after personal service, and it would seem that under such conditions and in the absence of a demurrer the allegations of the declaration were sufficient to show demand of the defendants for payment of the note and notice to them all of the nonpayment thereof.
The judgment shows jurisdiction of the parties, evidence heard, finding in favor of defendant in error and judgment against plaintiff in error and another for amount found due. No evidence was preserved by the record, so it must be presumed the evidence was sufficient to support the finding and judgment. Miller v. Glass, 118 Ill. 443. In the early case of Wells v. Hogan, 1 Ill. 337, Justice Lockwood laid down the rule that: “No particular form is required in the proceedings of a court to render their order a judgment. It is sufficient if it be final and the party may be injured.” That rule has since been followed and often reiterated by the Supreme and Appellate Courts of this State. In the case of Coats v. Barrett, 49 Ill. App. 275, a judgment in the following form was held sufficient: “The court being fully advised in the matter finds the issues for the plaintiff and proceeds to render judgment in favor of the said plaintiff and against the said defendant for the sum of two hundred and forty seven dollars and seventy cents, and the costs of this suit, and execution is awarded for the same.” While the judgment in this case may not be in the most approved form it clearly shows the plaintiff who recovers, the defendants against whom recovery is had, the amount of money recovered and awards execution. This is sufficient to show a valid judgment and under the circumstances disclosed by the record, it should be and accordingly is affirmed.
Judgment affirmed.
