Tinker v. Babcock

Mr. Justice Wilkin delivered the opinion of the court: The demurrer admitting all facts well pleaded, the question for our determination is whether or not the bill, upon its face, presented such a case as would give appellants a standing in a court of equity. Relief is sought against the heirs and devisees of Campbell on the one hand and against Catlin on the other. As to the former, they are not proper parties to the bill. The liability of Benjamin H. Campbell, by virtue of his signing the note in question, is a claim which could only be presented against his estate. The executor of that estate, its legal representative, not being made a party,, and it appearing that the personal estate was amply sufficient to discharge all claims and liabilities against it, and that the claim here in question was then in existence capable of being adjudicated, in no event could the relief asked for against the heirs and devisees be granted. Hoffman v. Wilding, 85 Ill. 453; People v. Brooks, 123 id. 246. Nor could the relief asked be granted in this proceeding against Catlin. The former proceeding in chancery, set forth in this bill, has already determined complainants’ liability to Catlin, the decree holding that as to him appellants were not sureties, but principal makers with Campbell. The former adjudication, which, as alleged, is still pending upon appeal, fixes appellants’ liability as makers, in common with Campbell, so far as the present bill is concerned. So, treating their liability to Catlin as determined by the former decree, it clearly can not be denied in this proceeding. It is also alleged in this bill that the holder of the note and the attorney for the estate of Campbell entered into a “certain arrangement and agreement, * * * the exact terms of which * * * complainants have been unable to learn,” the purpose being to enforce the collection of this claim from complainants by not presenting it to Campbell’s estate within the two years in which such claims could be presented, and this arrangement, it is insisted, ought in equity to discharge complainants from liability to Catlin: Aside from the fact that the allegation is wholly insufficient, the terms and conditions of the contract not being set forth and therefore not capable of being either admitted or denied, we think en ough appears upon the face of the bill to show that this defense was urged in the former chancery proceeding to defeat the collection of the judgment. It will certainly not be contended that complainants may, by a second proceeding in chancery between the same parties, again submit that question to judicial determination. Appellants’ counsel seem to contend that in the former proceeding this defense was not nrged. Even if the present bill failed to sufficiently show that the defense was urged in the other proceeding, complainants would still be precluded from insisting upon it here, for the reason that it was the duty of complainants, having knowledge thereof, to set forth all facts, and urge in one proceeding all their equitable defenses against the collection of said judgment. The former suit involved the same subject matter between complainants and Gatlin. The decree in that case is "final and conclusive, “not only as to the matter which the parties might have litigated and have had decided as incident to or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defense.” Freeman on Judgments,—2d ed.—sec. 249; Harmon v. Auditor, 123 Ill, 122, and cases cited. For the reason that it appears from the face of the .bill the executor of the estate of Benjamin H. Campbell is not made a party to the bill, and that as to Gatlin, the other party against whom relief is sought, the same subject matter of this cause is pending in another chancery proceeding, we think the circuit court properly sustained the demurrer. The judgments of the Appellate and circuit courts will be affirmed. T „ , Judgment affirmed. .