208 Ill. 128 | Ill. | 1904
delivered the opinion of the court:
It is apparent from the statement of .facts preceding this opinion that the matter in dispute between the parties to this appeal is the right of the appellee to recover the amount of $1477.06 as interest allowed the appellee by the judgment of the probate court on February 9, 1898, for the wrongful use of the money of the estate by Joseph Salomon in his own business from February 9, 1897, to February 9,1898, and which amount was included, with accrued interest, in the circuit court judgment on appeal from the judgment of the probate court. The judgment of the circuit court having been affirmed by the Appellate and Supreme Courts, it would seem the right of the appellee to-recover said interest had been settled in favor of the appellee beyond controversy. It is, however, contended by the appellants, that the probate court had no right to separate the interest from the principal sum of $24,826.37, which was on January 28, 1898, ordered paid to Holdom, as administrator, and afterwards, on February 9, 1898, to order the sum of $1477.06, as interest on said principal sum and as interest upon the $4715, to be paid to Holdom, as administrator, and it is urged that when the appellee brought suit upon the bond of the administrator to collect, for the principal sum of $24,826.37, he abandoned his right to recover the interest which had been held to have accrued upon said principal sums prior to the date said principal sum of $24,826.37 was ordered paid to the appellee. We do not agree with that contention. While it is true that the plaintiff cannot ordinarily split a demand, and recover in one action the principal and in another the interest due upon the principal sum, in the probate court, it is held, upon an accounting by an administrator, an appeal may be prosecuted from each item of the administrator’s account. (Morgan v. Morgan, 83 Ill. 196.) In this case Joseph Salomon prosecuted the appeal from the order of the probate court, and thereby severed the item allowed for interest from the principal sum, and he, or his surety upon said appeal bond, can not be heard to complain that the appellee did not sue for said principal sum, and the interest thereon, at the time he brought suit-up on the bond of the administrator to collect, when, by the appeal of the administrator to collect from the judgment allowing said item of interest, he prevented the appellee from pursuing that course. When the suit upon the bond of the administrator to collect was here, (191 Ill. 290,) the converse of the position now taken by the appellants was then assumed by Joseph Salomon, and it was then contended by him that no recovery could be had in that case, for the reason that his appeal from the order of the probate court disallowing the items in his account to the amount of $4715 and charging him with interest to the amount of $1477.06 was then pending and the amount for which he was liable upon said bond could not then be determined; but this court held that the pendency of said appeal did not constitute a valid reason for Salomon not paying to Holdom, as his successor in office, the portion of the estate which he admitted was in his hands and belonged to Holdom, as administrator. It has heretofore been held by this court (186 Ill. 445) that the item of $1477.06 allowed for interest was properly charged to the account of Joseph Salomon. No claim is made that said interest has been paid by Joseph Salomon or released by the appellee. The question, therefore, of the liability of Joseph Salomon to pay said interest is res judicata and cannot be inquired into collaterally, by motion or otherwise. When the liability of Joseph Salomon to pay the judgment for §6249.25 of the circuit court, rendered upon the appeal from the judgment of the probate court, was finally decided by this court and he failed to pay the same, he and his surety upon the appeal bond from the Appellate Court to this court became liable on said appeal bond to pay the judgment of the circuit court, and judgment having been rendered against the appellants upon said appeal bond for the amount of the judgment of the circuit court, which included said item of interest, that judgment was final and could only be discharged by the payment or release of said judgment. Furthermore, the term at which the judgment upon the appeal bond had been rendered having expired, the jurisdiction of the circuit court over said judgment, and its right to eliminate from said judgment the said item of §1477.06 and the accrued interest thereon, had ceased. A court of law, when a judgment has been paid or discharged, may cause satisfaction of the judgment to be entered upon its record, but it is powerless to cause the satisfaction of a judgment to be entered, after the term at which it was rendered, has expired, for matters which existed at the time the judgment was rendered and which might have been pleaded and proven in bar of the action. All the matters sought to be reviewed by the motion made in the circuit court existed before the judgment sought to be satisfied was rendered, and the circuit court was without jurisdiction to enter the order of July 28, 1902, the effect of which was to change a judgment which had been rendered by said court at a former term.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
