Mester Coal Co. v. Pope ( 1910 )

Mr. Presiding Justice Chytraus

delivered the opinion of the court.

At the conclusion of plaintiff’s brief and argument, the following frank statement of plaintiff’s position appears, with reference to the precise question which plaintiff raises by this appeal:

“In abstracting the testimony of this case no attempt was made to give all the testimony heard by the jury, and a reversal is now urged upon the principle that, regardless of whether the evidence outside this admission would have warranted a reversal, the error of the jury is so clearly shown by the admission that a new trial must be granted.”

Consistently with this statement, plaintiff’s argument in this court is confined to an effort to demonstrate that the trial court erred in overruling plaintiff’s motion for a new trial, when it appeared that the jury returned a verdict for the defendant notwithstanding defendant admitted, both in his affidavit of merits and in open court before the jury, that there was due and owing from him to the plaintiff the sum of $106.06. That is, as plaintiff puts it, substantially, the action of the court in that regard could not be proper because “the jury had, through inability to comprehend the case, or through indisposition to consider it carefully, found that the defendant owed plaintiff nothing, when defendant himself was contending that he owed plaintiff $106.06 ’ ’. Plaintiff, by his argu.ment here, places his claim to a reversal of the judgment rendered solely upon the ground of error by the trial court in this respect. The abstract of record which is presented prevents inquiry whether the verdict rendered was otherwise against the preponderance of the evidence. We are obliged to assume that in every other respect the verdict is sustained by the evidence.

The law is well settled that a plaintiff may appeal from and have reversed a judgment or a decree in his favor, if erroneous. Teal v. Bussell, 2 Scam. 319; Jones v. Wight, 4 Scam. 338; Thayer v. Finley, 36 Ill. 262; Carr v. Miner, 40 Ill. 33; Commissioners v. Commissioners, 87 Ill. App. 93, 105; Frost v. Howard, 81 Ill. 602. Unless complainant has obtained the precise relief sought, i. e., “If he is able to assign any error or has not obtained all that he deems himself entitled to, he may appeal.” “If one who instituted a suit or proceeding does not obtain what he asks for in full, he •can undoubtedly prosecute an appeal. ’ ’ Gray v. Jones, 178 Ill. 169, 171-2; Williams v. Breitung, 216 Ill. 299. We see no reason, however, for reversing the judgment rendered. We fail to see that any harm was done plaintiff by the procedure in the court below, assuming, as we have said we must assume, that the evidence sustained the verdict, otherwise than as to the $106.06. Judgment was rendered in plaintiff’s favor for that $106.06 so that in that regard plaintiff has nothing to complain of.

The amendment to section 55 of the Practice Act, chapter 110, Revised Statutes, in force July 1, 1907, changes in some actions ex contractu the procedure that previously prevailed. That amendment authorizes, when the defendant, by an affidavit of merits or ■defense, admits to be due and owing a part of the -amount which the plaintiff claims, the rendition of a .judgment for the part admitted to be due and owing. That is the amendment authorizes two judgments in •one action where but one was before permissible. . So far as material for present purposes the amendment is as follows: “If the affidavit of defense is to only ,a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of the-plaintiff’s demand in dispute as if the suit had been brought therefor.” When defendant herein filed his affidavit of defense and thereby admitted $106.06 of the plaintiff’s demand to be due and •owing to the plaintiff, that portion of the plaintiff’s ■demand immediately ceased to be in dispute or in issue in the suit. This was equally true, whether plaintiff immediately took judgment for the amount admitted or not. After that admission plaintiff was entitled to take judgment for the amount admitted to be due, at any time. The plaintiff, however, did not choose to take the judgment he was entitled to and it was not rendered until after the trial upon the portion of the plaintiff’s demand which was in dispute. As to the admitted portion of the demand there was, nevertheless, no issue to be tried by the court or jury after the defendant’s affidavit was filed. "When the jury returned a verdict finding the issues for the defendant that verdict related solely to “the portion of the plaintiff’s demand in dispute,” as to which, according to the statute, the suit shall, after the admission, proceed “as if the suit had been brought therefor” and for nothing more. Upon the record, as presented to us, we see no error in that the court overruled the-motion for a new trial as to the part of plaintiff’s demand in dispute; and as to the part of his demand not in dispute plaintiff is in no position to complain for not only was judgment rendered in his favor therefor but he was tendered the amount in open court.

It is true that the learned trial judge did err in granting defendant leave to pay the amount of said judgment to the clerk of the court “for the use and subject to the order of plaintiff,” in allowing defendant’s motion, upon such payment being made, that the judgment be satisfied of record in open court and in-satisfying and discharging the said judgment of record, in open court, all of which was done despite plaintiff’s objection and to the action of the court in which respect plaintiff excepted. There is no warrant in the law for a court, upon rendering a judgment in a party’s favor, compelling that party to receive or accept the money or upon his failure to receive or accept the money to appoint the clerk of the court, or any one else, custodian of the party’s money and then satisfying the judgment upon payment of the amount of the judgment to the custodian appointed by the court. The action of the court in this respect was coram non judice, without validity and of no effect. However, so far as this record discloses, no harm was done plaintiff thereby and he is entitled to have the satisfaction and discharge of the judgment set aside upon motion.

There being no reversible error in the record, the judgment must be affirmed.

'Affirmed.