Flake v. Carson

Mr. Justice Breese delivered the opinion of the Court: This was an action of assumpsit for goods, wares and merchandise sold and delivered, for money, and on an account stated, and for interest, against the plaintiff in error impleaded with William Martin as partners. Flake was alone served with process, and he pleaded to the action, and judgment was rendered against him alone. It is insisted by the plaintiff in error that as the record shows an appearance by both defendants, the judgment should have been against both or neither. This is the rule as we understand it. Fuller v. Robb et al., 26 Ill. 248, and cases cited. But what is the evidence of this appearance by both defendants, one of them alone having pleaded ? The record recites that the defendants entered their motion to suppress a certain deposition at the February Term, 1862 ; that at the June Term, 1863, they entered their motion to suppress a certain other deposition, and at the same term entered their motion for a continuance of the cause. At the September Term, 1863, the record recites that the parties by their attorneys waived a jury and put themselves on the court for trial; and it also recites among the entries of the following day that the parties herein appearing on yesterday by their attorneys,, &c. On the strength of the cases of Frazier v. Resor et al., 23 Ill. 89, and Abbott v. Semple, 25 id. 107, we are compelled to hold there was an appearance by both parties. In the last case we said, when a party appears for a specific purpose, as to show that he is not properly before the court, he should so restrict his motion. If he makes several motions in the cause, not limiting his appearance to a specific purpose, he will be held to have appeared generally for all purposes. An objection is made as to the allowance of interest. We do not see the'propriety of the charge for interest. By our statute interest is not chargeable on an open account when it has not been liquidated and a balance agreed upon. This account has never been adjusted, but remained open, some items in it being denied. It would seem also, from the testimony of Eichelberger and Sheaver, that some mistake has been made in the credits entered upon the accounts. If the defendants are not precluded by the admissions made in another cause which was dismissed, they are certainly entitled to larger credits than have been given them. As to the controversy about the gunny bags, it is clear the price of them was deducted from the proceeds of the corn. The judgment is reversed and the cause remanded. Judgment reversed.