Gormley v. Hartray

Mr. Presiding Justice Ball

delivered the opinion of the court.

First. Appellant says that this case has never been at issue because he alone was served; that his partner was not served in the justice court nor in the Circuit Court; nor was a summons issued for him in the latter court and returned “ Hot found,” as required by the statute. To sustain this contention appellant relies upon Sec. 30, Chap. 79, Hurd’s R. S. (1898), the material parts of which, as applicable to this case, we will hereinafter quote. This section was numbered 80 in the justice of the peace act as it stood prior to 1895. In 1895 this act was entirely revised by an act entitled, “ An act to revise the law in relation to justices of the peace and constables.” From this revision some fourteen sections of the old act (including in that number this section, now 180, then 80) were wholly omitted. Upon the hypothesis that this section is still in force, as to which we express no opinion, appellant is not helped thereby, for we think that it has no application to this case, because it applies to those parties only against whom the justice rendered judgment, and does not in any way affect parties defendant who were not served before the justice and against whom no judgment was or could be rendered. It reads:

“ When an appeal shall be taken by one of several parties from the judgment of a justice of the peace * * * the court shall have power to give the same judgment as though all the parties to the judgment had joined in the appeal, unless the appearance of the appellee shall be entered as herein provided.”

In an appeal by one of two partners from the judgment of a justice of the peace against him alone, the other partner not having been served, the Circuit Court acquires the same jurisdiction which the justice had. The other partner, who was not served, and against whom no judgment was rendered, need not be summoned to appear in the Circuit Court. But the Circuit Court should hear and determine the case for or against the partner who appealed. This Court, in Fabbri v. Cunio, 1 Ill. App. 240, held:

“A defendant against whom no judgment was rendered in the trial before the justice need not be summoned to appear in the Circuit Court as a party defendant, on appeal by a co-defendant against whom a judgment was rendered. In perfecting an appeal it is necessary to bring before the Circuit Court only those persons who were parties to the judgment appealed from.”

To the same effect are Stephens v. Cross, 27 Ill. 35, and Smith v. Irwin, 5 Gilm. 268.

Again: Where but one of the partners has been served in a suit brought upon a joint obligation, the others not appearing, judgment may be taken against the partner who is served, and the others can afterward be brought in by scire facias. Sherburne v. Hyde, 185 Ill. 582. Section 10 of the practice act, relating to sci. fa., and section 45 of the justice act, concerning the same writ, are in substance the same.

Second. Appellant says that no demand for payment was made upon him before the suit was commenced, and therefore this suit was prematurely brought. This proposition is not the law. It is the duty of the maker of a promissory note, not payable at a particular place, to find his paper and to take it up. The demand is by the maker upon the holder. A demand of payment is necessary only to fix the liability of an indorser or of a surety. Allen v. Rightmere, 20 Johnson, 365. In Hunt v. Divine, 37 Ill. 137, 144, the Supreme Court say:

“ A promissory note payable on demand, as against the maker, can be prosecuted to judgment without averring or proving any demand. So if it is made payable at a particular time and place, it is not necessary to aver or prove a demand at the place in order to recover. Butterfield v. Kinzie, 1 Scam. 445; Armstrong v. Caldwell, Ib. 546. In Wallace v. McConnell, 13 Peters, 136, it is likewise held that in actions on a promissory note against the maker, when the note is made payable at a specified time and place, it is not necessary to aver in the declaration and prove on the trial that a demand was made in order to maintain the action. But if the maker was at the place at the time specified, and was ready and offered to pay the money, it urns matter of defense to be pleaded and proved on his part. This is the doctrine of all the courts of this country.”

Third. Appellant complains that certain instructions he tendered wpre not given to the jury.

Humber 2, telling the jury that they should consider the evidence “ in the light of the knowledge which you have obtained as men of affairs,” is abstract. Further, it did nothing more than to tell the jury to do what they could not honestly refrain from doing—that is, to use their common sense and experience. Number 6 has no basis in the evidence. Number 8 is covered by number 14, which was given. The law as laid down in number 10 is substantially set forth in given instruction number 11. Number 16 has no foundation in the evidence. A careful examination of the evidence and of the instructions given and refused convinces us that the learned trial judge did not err in this regard.

Fourth. Upon cross-examination of J. W. Hartray he was asked this question and made this answer :

“ Q. You may state whether or not you stated to James H. Gormley, at 78 Randolph street, during the month of February, 1896, in the presence of Mr. Gormley, A. B. Pichereau and Stephen Havighorst, that there were no obligations of the J. W. Hartray Co., other than those shown in the ledger which has been introduced and marked Defendant’s Exhibit ‘ B ? ’ A. I don’t remember.”

Intending to contradict this answer, appellant called the witness Havighorst, who testified:

“ I have examined the day-book, cash-book and journal of J. W. Hartray & Co. for the months of November and December, 1895, and they show no entry of these transactions. I have examined the books all the way through and Thomas E. Hartray’s name does not appear in those books in any way, shape or manner.”

“Attorney for plaintiff: We will admit that these books do not show this transaction.”

“ Q. In February, 1896, were you present at the office of Bullard & Gormley, 78 Randolph street, and hear Mr. J. W. Hartray make any statement that these books, offered in evidence, showed all the business transactions of the firm of J. W. Hartray & Co.? ”

To this question an objection was made which the court sustained. Appellant excepted, and now urges the sustaining of this objection as reversible error. The question asked Hartray and his answer 'thereto that he “ did not remember,” laid the foundation for the putting of an impeaching question. Ray v. Bell, 24 Ill. 444. But in common fairness to a witness whom it is attempted to impeach by showing that at another time and place he stated what on his examination he declares he does not remember, the question put to the witness called to show such statement should be identical, or at least substantially identical, with the original question. That question shows appellant, A. B. Pichereau and Stephen Havighorst present, and “ that there were no obligations of the J. W. Hartray Co. other than those shown in the ledger.” The question asked Havighorst fails to state that either appellant or Pichereau was present, and the statement was “ that these books offered in evidence showed all the business transactions of the firm of J. W. Hartray & Co.” We are of the opinion that the original question was not as closely adhered to as the law requires, and that therefore the objection was properly sustained.

The judgment of the Circuit Court is affirmed.