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Pardridge v. Brady.

assess actual damages for the real injury sustained, against any of the defendants.

The instruction was liable to be misconstrued by the jury in another respect. Having been told in a previous instruction that if they found a trespass had been committed by some of the defendants, which had been subsequently ratified by others of the defendants, the latter were also guilty, the jury would be apt to infer that the defendants thus ratifying the trespass were also liable to exemplary damages, if those who actually committed the trespass were liable to such damages. While a subsequent ratification of a trespass by one who was not present and did not authorize it, will render him amenable to the payment of damages to the extent of the real injury occasioned thereby, the rule seems to be settled in this State that such subsequent ratification does not authorize the infliction of exemplary damages. In Grund v. Van Vleck, 60 Ill. 487, which was very similar in its facts to the case at bar, Mr. Justice Sheldon, who delivered the opinion of the court, says:

"The jury were instructed that they might give exemplary damages. This was erroneous as respects Mrs. Grund and R. P. Blanchard. There is no pretense that they were concerned in the commission of the alleged wrongful acts. The claim for their liability is that they approved and sanctioned the acts after they had been done. The approval of a wrongful act already committed is no subject of punishment. Subsequent approval of a trespass will not affect a third person unless the act is done in his name and for his use, and in that case the liability, as we conceive, is only for the real injury sustained, and not to the extent of vindictive damages." See, also, the opinion of Mr. Justice Story to the same effect, in the case of the Amiable Nancy, 3 Wheaton, 546.

In the present case the acts complained of were done by Howard acting under the direction of Hurley, and without the knowledge of Pardridge or Stokes, who, if liable, are liable only because of their subsequent ratification of the acts complained of.

Numerous cases are found in which our Supreme Court has held that exemplary damages may be awarded against a corpo

7 646 66 157

Koren v. Roemheld.

ration for the wrongful acts of its servants and employes while ostensibly discharging duties within the scope of the corporate purposes; but these decisions are not based upon the ground of a subsequent ratification, but upon the principle that as a corporation can act only through its agents, it must be considered to be constructively present, and commanding the act done. St. Louis, Alton & Chi. R. R. Co. v. Dalby, 19 Ill. 353. And that a person openly and notoriously exercising the functions of a particular agency of a corporation will be presumed to have authority from the corporation to so act. Singer M'f'g Co. v. Holdfoot, 86 Ill. 455. The decisions are placed upon the ground of an express authorization of the ticular act complained of. The act of the agent is the act of the corporation itself, and in such cases the effect of a subsequent ratification of a previously unauthorized act is not involved.

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For the reasons hereinabove given, we are of the opinion that the judgment of the court below must be reversed, and the cause remanded for a new trial.

Reversed and remanded.

HANS J. KOREN

V.

JULIUS ROEMHELD.

IMPEACHING JUDGMENT.-It is true that a stranger to a judgment may, if injuriously affected thereby, collaterally impeach such judgment for want of jurisdiction of the person or subject-matter, or for fraud or collusion between the parties in obtaining it; yet when there is jurisdiction of the parties and subject-matter, and the judgment is not the result of fraud, and it is material only to establish the fact of such judgment and its legal consequences, the record is conclusive even as to strangers.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding. Opinion filed January 4,

Koren v. Roemheld.

Mr. R. H. FORRESTER and Mr. F. S. BAIRD, for appellant; that although a witness may refresh his recollection by reference to a written memorandum, yet after an inspection of the writing he must be able to speak from his own recollection, cited Elston v. Kennicott, 46 Ill. 187; Seaverns v. Tribby, 48 Ill. 195.

Appellee's objection to the entry of the judgment by confession was not raised on the former trial, and it is now too late to raise it, when the cause is remanded for a new trial: Hollowbush v. McConnell, 12 Ill. 203; Kingsbury v. Buckner, 70 Ill. 514.

The record of the judgment cannot be contradicted by oral testimony: Swartz v. Barnes, 11 Ill. 89; Osgood v. Blackmore, 59 Ill. 261; Welch v. Sykes, 3 Gilm. 197; Kayser v. Hall, 85 Ill. 511; Chambers v. Clearwater, 1 Abb. App. 341; Swiggart v. Harber, 4 Scam. 364; Buckmaster v. Carlin, 3 Scam. 104; McMillum v. Whelan, 27 Cal. 300; Barnett v. Wolf, 70 Ill. 76; Anderson v. Field, 6 Bradwell, 307; Sattler v. The People, 59 Ill. 68; Faulk v. Kellums, 54 Ill. 189.

Mr. A. F. STEVENSON, for appellee; upon the general principles which guide courts in affirming or reversing judgments where the evidence is conflicting, cited Thomas v. Rutledge, 67 Ill. 213; Wood v. Price, 46 Ill. 435; Coari v. Olsen, 91 Ill. 273; Sheerman v. C. & M. R. R. Co. 48 Ill. 523; Am. Ex. Co. v. Bruce, 50 Ill. 201; Farr v. Scott, 50 Ill. 490.

Delivery of an execution to an officer, with directions not to levy, or to stay execution till a future day, creates no lien upon the debtor's property: Gilmore v. Davis, 84 Ill. 487; Ross v. Weber, 26 Ill. 224; Kempland v. Macauley Peake's, Nisi Prius, 66; Hunt v. Hooper, 12 Mees. & W. 664; Berry v. Smith, 3 Wash. C. C. 63; Wise v. Darby, 9 Mo. 130; Williamson v. Johnson, 7 Halst. 86; Stern's App. 64 Pa. St. 447.

If a creditor seize goods of a debtor under an execution, and allows the debtor to remain in possession, it is void as to subsequent executions: Davidson v. Waldron, 31 Ill. 120; Storm v. Woods, 11 Johns. 110.

As to what is necessary to make a good levy: Minor v.

Koren v. Roemheld.

Herriford, 25 Ill. 344; Havely v. Lowry, 30 Ill. 446; Logsdon v. Spivey, 54 Ill. 104; Harris v. Evans, 81 Ill. 419; Reamer' App. 18 Pa. 510; Pary's App. 41 Pa. 273; Hood v. Vanarsdale, 3 Rawle, 401.

The rendition of a judgment is a judicial act—its entry upou the record merely ministerial: Matthews v. Houghton, 11 Me. 377; Fish v. Emerson, 44 N. Y. 376; Davis v. Shafer, 1 Phill. 18.

Whether there was a mistake in the record was a question of fact, to be established by proper evidence: Weed v. Weed, 25 Conn. 337; Hollister v. The Judges, 80 Ohio St. 201.

Judgments may be impeached by strangers for fraud, but not by those who were parties or privies to it: Greene v. Greene, 2 Gray, 361; Peck v. Woodbridge, 3 Day, 30; Field v. Sanderson, 34 Mo. 542; Callahan v. Griswold, 9 Mo. 784; Mason v. Messenger, 17 Iowa, 161; Townsend v. Kerns, 2 Watts, 183; Osborne v. Moss, 7 Johns. 161; Mosely v. Mosely, 15 N. Y. 334; Williams v. Martin, 7 Geo. 378; Hammock v. MeBride, 6 Geo. 178; Smith v. Henderson, 23 La An. 649; Barefield v. Bryan, 8 Geo. 463.

Where there is a total want of jurisdiction, the judgment is void and may be impeached collaterally: Elliott v. Piersol, 1 Pet. 340; Thompson v. Tolmes, 2 Pet. 163; Vorhees v. U. S. Bank, 10 Pet. 474; Buckmaster v. Carlin, 3 Scam. 104.

A judgment collusively confessed is fraudulent, and may be attacked by any party whose interest may be affected: Phillips v. Demoss, 14 Ill. 410; Ransom v. Jones, 1 Scam. 291; Denton v. Noyes, 6 Johns. 296; Lewis v. Smith, 2 Serg. & R. 142; Fuerman v. Leonard, 7 Allen, 54; Field v. Gibbs, 3 Pet. 155; St. Albans v. Rust, 4 Vt. 58.

MCALLISTER, P. J. Although in the order of delivery to the sheriff of the respective executions in question, that of appellant was unquestionably prior in time, yet on appellee's application to the court for an order that the proceeds of the execution sale of the judgment debtor's goods be applied upon his execution, they being insufficient to satisfy either, the court, on the first hearing of such application, decided in

Koren v. Roemheld.

appellee's favor on the ground that appellant's execution was dormant and to be postponed to that of appellee, by reason of alleged directions given on behalf of appellant, to the sheriff, at the time his execution was delivered, to hold it for further orders. On appeal to this court that order was reversed, because, in the view of this court, the evidence failed to establish the fact on which it was based. Koren v. Roemheld, 6 Bradwell, 275. On the case coming on for hearing in the court below, a second time, the appellee gave evidence tending to establish the fact of such direction having been given, and also to collaterally impeach appellant's judgment, against the objections and exceptions of the latter, by calling as a witness the judge of the Superior Court, in whose branch of said court the said judgment, according to the record thereof, purported to have been rendered upon a declaration upon a promissory note, a warrant of attorney, and cognovit, and by introducing the oral testimony of said judge to contradict the record of his own court, and to show that, as matter of fact, he, though at the time was holding a term of said court, never saw said papers, though they were on the regular files of the court at the time of the judgment, and did not order said judgment to be entered. The oral testimony of deputy clerks, also tending to contradict the record in the same respect, was likewise admitted by the court against appellant's objections. Upon the foregoing testimony, the court below again decided in favor of appellee, directing the said proceeds to be applied on his execution; and the appellant bringing the case to this court by appeal, assigns said rulings for error. It is contended by counsel for appellee that because the latter was a stranger to appellant's judgment, the record was not conclusive as to him, and that, therefore, the oral testimony was admissible (even though it contradicted the record) for the purpose of showing there was no authority to make a record.

The admissibility of such testimony under the circumstances of the case, is the principal question we propose to discuss. The court in which the judgment thus sought to be impeached, was entered, is a court of general and superior jurisdiction. The warrant of attorney was appended to the note which was payable

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