99 Ill. 418 | Ill. | 1881
delivered the opinion of the Court;
The present plaintiffs in error were the defendants in error in the writ of error sued out from the Appellate Court for the Fourth District, pleaded in the first plea, and if, when the record brought up by that writ was before that court, the question raised by the error here assigned was presented, or if it was their duty to have caused it to be presented by the assignment of a cross-error, the plea is good, and the demurrer thereto must be overruled. But, on the other hand, if that record did not present the question raised by the error here assigned, and plaintiffs in error were not bound to have caused it to be presented by the assignment of a cross-error, the plea is bad, and the demurrer thereto must be sustained. This is as favorable a view to plaintiffs in error as their counsel claims, and as is sanctioned by the authorities.
i- It is not claimed that, under the errors assigned upon that record, the question was presented. Ho error under which that question can be said to have been properly before the court was assigned, and the Appellate Court, in the condition of the record as then presented, was not authorized to take notice of or pass upon it. Jackson v. Warren, 32 Ill. 331; Gilbert v. Maggord, 1 Scam. 471.
The question then remains, were plaintiffs in error bound to assign the error here assigned as a cross-error, upon that record.
Originally, cross-errors were not allowed to be assigned in this court as a matter of right. Smith v. Sachett, 15 Ill. 528. And the only remedy, therefore, allowed to a defendant in error, or appellee, who felt himself aggrieved by error in the record, was to also appeal or sue out a writ of error in the same case, his right to do so not being barred or affected by the appeal or writ of error of his adversary. Harding v. Larkin et al. 41 Ill. 413.
Afterwards (in 1869), the General Assembly enacted, that ee in all cases of appeal to the Supreme Court, or writ of error, the appellee or defendant in error may assign cross-errors, and the court shall dispose of the same as in other cases of assignment of error.” Rev. Stat. 1874, p. 784, § 79.
This, it will be perceived, is permissive only. It confers upon the appellee or defendant in error a discretion to assign cross-errors, but it does not make it imperative that they shall do so, nor bar them of the right to prosecute a cross-appeal or writ of error, if they shall elect not to assign cross-errors. If they do assign cross-errors, they can not afterwards prosecute a writ of error upon the same record; but when they do not do so, they retain their common law right to sue out a writ of error upon the same record. This identical question was before the Court of Appeals of Kentucky, in Wickliffe v. Buckman, 12 B. Mon. 424, and they ruled there, as we do here, in favor of the right to prosecute the cross-writ of error. We therefore deem the plea insufficient, and the demurrer thereto must consequently be sustained.
The second plea is a plea of release ojf errors. It claims the errors are released because of the payment of the judgment before the suing out of the writ, and before any record of the lands and lots had been made out and delivered to the collector by the county clerk, or any process for the sale of said lots and lands had come into the hands of said collector, etc. The plea is clearly insufficient, and the demurrer thereto must be sustained. The payment of a judgment, before execution issued, does not operate as a release of errors. Richeson v. Ryan, 14 Ill. 74; Hatch v. Jacobson, 94 id. 584.
We do not consider it important to inquire, whether, as contended by counsel for defendant in error, the law is that the plaintiffs in error, under the facts disclosed by this record, can not recover the money paid by them upon this judgment, or whether it is the other way, since it is well settled that the payment or satisfaction of a judgment against a party can never be allowed as a bar to a writ of error, “even in case where we must see that no restitution could follow the reversal as a legal consequence, and no costs be recovered. An erroneous judgment against him is an injury per se, from which the law Avill intend he is or will be damnified by its continuing unreversed.” Barthelemy v. The People, 2 Hill, (N. Y.) 255; Gordon v. Gills, 3 Smedes & Marshall, (Miss.) 492; Armes v, Chappell, 28 Ind. 469.
This disposes of the case, and it is unnecessary to further inquire, as Ave are invited by the arguments filed, Avhether error was properly assigned on the exceptions taken during the trial. When a plea of release of errors, on demurrer thereto, is adjudged bad, a judgment of reversal must be entered thereon. Clapp et al. v. Reid et al. 40 Ill. 121; Ruckman et al. v. Alwood et al. 44 id. 183 ; Thornton et al. v. Houtze et al. 91 id. 217.
The judgment is reversed and the cause remanded.
Judgment reversed.
