People v. Becker , 253 Ill. 131 ( 1912 )

Mr. Justice Hand

delivered the opinion of the court:

The question presented upon this appeal for decision is, did the satisfaction of the judgment recovered against Pavey in the circuit court of Jefferson county operate as a satisfaction of the judgment entered against the estate of Becker in the probate court of St. Clair county? We are of the opinion it did not. The judgment of the probate court of St. Clair county was a valid adjudication against the Becker estate when rendered, and unless the warrants which formed the basis of that judgment were included in the judgment rendered by the circuit court of Jefferson county against Pavey, which was satisfied, there was no satisfaction of the judgment against the Becker estate. The six warrants were counted upon in the declaration in the suit in the circuit court of Jefferson county against Pavey, and the record of that court fails to show that any one of the said warrants was withdrawn. The judgment was general, and the presumption would obtain, we think, in the absence of extrinsic evidence, that each warrant declared on entered into the consideration of the court in making up its judgment. That presumption, however, might be overcome by parol proof showing that the warrants which formed the basis of the judgment against the Becker estate were not offered in evidence in the Jefferson circuit court and were not included in the Pavey judgment.

The case of Palmer v. Sanger, 143 Ill. 34, is in point. In that case a claim was presented against an estate for $12,745, which consisted of nine separate items, the last of which was a note secured by a mortgage on real estate. The claim was allowed for $5891.62, and the judgment was general in form, and the records of the county court did not show that any item or items of the account had been withdrawn from the consideration of the court. After-wards a bill was filed to foreclose the note and mortgage which had been included in the account filed in the county court, and the judgment of the county court upon the claim was offered in evidence, and it was insisted that the judgment of the county court was a bar to the foreclosure suit. The complainant in the foreclosure suit made proof, by parol, that the note secured by the mortgage then sought to be foreclosed was not offered in evidence in the county court, and that the judgment of the county court was not based, in whole or in part, upon said note, but was based entirely upon other claims mentioned in the account. The court held that as the note mentioned in the mortgage was included in the account filed in the county court and had not been withdrawn, 'and the judgment was general in form, it would be presumed the note was included in the probated claim, but as the parol evidence introduced in the foreclosure suit clearly showed the note was not included in the claim as allowed, the judgment of the county court was not a bar to the foreclosure suit. On page 39 of the opinion the court said: “We think the record shows prima facie an adjudication upon the whole indebtedness probated. The judgment is general. It nowhere appears by the record that any item in the claim filed was dismissed or withdrawn, hence presumably each item entered into the consideration of the court in making up its judgment. It does not follow, however, that such presumption may not be overcome by parol proof showing that certain of the items were not so considered. The total indebtedness filed against Sanger’s estate was not a single claim, but nine claims presented together. That some of these did not enter into the judgment of the county court is clearly shown by the amount allowed. What disposition the court made of the other items is left in doubt, and parol evidence to remove that uncertainty does not contradict the record in the sense that malees such testimony inadmissible as against a record. * * * It was competent for the complainant below to prove by parol, if she could, that item 9 of her claim against the estate of Lorenzo P. Sanger was never, in fact, passed upon by the county court of Cook county.”

In Chicago, Burlington and Quincy Railroad Co. v. Schaffer, 124 Ill. 112, it was said, on page 121: “When a former recovery is relied on as a bar, parol evidence not contradictory of the record may, in case of such doubt, be introduced to show what was included within and investigated on the trial of the issue. If the face of the record does not show the full and true state of the controversy and the matters investigated, parol evidence must be admitted to supply what is not shown.”

Mr. Greenleaf, in his work on Evidence, (14th ed. sec. 532,) says: “When a former judgment is shown by way of bar, whether by pleading or in evidence, it is competent for the plaintiff to reply that it did not relate to the same property or transaction in controversy in the action to which it is set up in bar, and the question of identity thus raised is to be determined by the jury upon the evidence adduced.”

The evidence in this case shows, without contradiction, that the judgment in the Pavey case was entered, by agreement, for the face of the two warrants drawn in Pavey’s own favor and collected by him from the State Treasurer, and that the warrants issued to Becker, and which form the basis of the probate court judgment, were not offered in evidence or considered by the probate court in making up the judgment in that court. The appellant alleged in his report filed in the probate court that the Becker judgment had been paid, and it devolved' upon him to sustain such allegation. This he failed to do, and the circuit court properly sustained exceptions to his report in that particular.

It is next contended the Auditor and Treasurer were joint tort feasors, and as the State had accepted the amount of the Pavey judgment from Pavey and his bondsmen and released Pavey, such release worked a discharge of the Becker estate, Becker having been a joint tort feasor with Pavey. The Auditor and Treasurer were not joint tort feasors. (Whittemore v. People, 227 Ill. 453.) Their acts were not joint acts. The wrongful act of Pavey was in drawing the warrants and the wrongful act of Becker was in paying them, and whatever liability the law attached to their several acts was a distinct and separate liability, which could be enforced against them, or them and their bondsmen separately. The only sense in which they and their bondsmen were jointly liable, the one with the other, was that there could be but one satisfaction for the money or moneys wrongfully withdrawn from the State treasury, and as there will be but one satisfaction of the claim against the Becker estate if it shall be paid to the State by the administrator, the appellant is not in a position to claim that the estate has been wronged by reason of the fact that the State has forced Pavey to liquidate his liability.

Finding no reversible error in this record the judgment of the circuit court of St. Clair county will be affirmed.

Judgment affirmed.

Farmer and Cooke,. JJ., dissenting.