Bright v. Kenefick ( 1897 )

Hr. Justice Waterman

delivered the opinion oe the Court.

Upon the trial the court refused to hold the following propositions of law tendered by the plaintiff:

“ Fifth. The court holds the law of this case to be that the plaintiff is not required to elect as to whether he will base his action upon the judgment offered in evidence in this case or the bill of exchange offered in evidence in this case, but he may declare upon and offer in evidence both of said supposed causes of action, and if entitled to recover upon either of them, judgment should be rendered in his favor upon such cause of action.

Sixth. The court holds the law of'this case to be that if the judgment offered in évidence was a valid judgment, the plaintiff should recover upon such cause of action, but if the said judgment is not a valid judgment in personam by reason of lack of jurisdiction over the person, as claimed by the defendant in this case, that then the rendition of such judgment, being a judgment in rem only, for want of jurisdiction over the persons, does not work a merger of the original cause of action, to wit, the bill of exchange offered in evidence herein.”

Either there was or was net, in the court of Virginia, a valid judgment in personam against appellee; if there was no such judgment, because appellee never authorized any one to appear for him in said cause, then the claim of appellant against appellee upon the bill of exchange remained unaffected by that judgment.

If there be a merger, it is because of the validity of such judgment.

The claim of appellant is not, as appellee insists, that he, appellant, “ shall have his cake and eat it too; ” but that if the cake has not been eaten, as appellee contends, then he, appellant, still has it.

The court ought, therefore, to have held the fifth and sixth propositions of law tendered by the plaintiff. Such refusal shows that the case was determined upon an erroneous theory; and the judgment must, therefore, be reversed and the cause remanded. Kimball & Co. v. Doggett, 62 Ill. App. 528; West Chicago Park Comm’rs v. Kinkade, 64 Ill. App. 113.

Reversed and remanded.