Leathe v. Thomas

Per Curiam : It is first contended that the judgment exceeds the ad damnum of the pleas upon which judgment was rendered in favor of the defendant in error. The attention of the trial court was not challenged, by exception or otherwise, to the fact that the amount found by the referee to be due the defendant in error, and for which amount he recommended that defendant in error have judgment, exceeded the amount of the ad damnum of the pleas. Had the court’s attention been called to that fact the pleas could readily have been amended and the error avoided. In Butler v. Cornell, 148 Ill. 276, it is said that an objection to the report of a referee, not made in the trial court by exception, which might have been obviated by amendment, will not be considered on appeal or writ of error. In Metropolitan Accident Ass. v. Froiland, 161 Ill. 30, Prairie State Loan and Building Ass. v. Gorrie, 167 id. 414, and Wheatley, Buck & Co. v. Chicago Trust and Savings Bank, id. 480, it was held that an objection that the judgment exceeds the amount of the ad 'damnum of the declaration cannot be raised for the first time on appeal. In Wheatley, Buck & Co. v. Chicago Trust and Savings Bank, supra, the point was made that the judgment exceeded the ad damnum laid in the declaration. The court, on page 484, said: “This, indeed, was error. But the error can not now be taken advantage of. The objection must be considered as waived by reason of its not having been made in the trial court. Had that court’s attention been called to the matter the objection could readily have been obviated. (Metropolitan Accident Ass. v. Froiland, 161 Ill. 30; Utter v. Jaffray, 114 id. 470.) Counsel, on the contrary, made no mention of the error in either the motion for a new trial or the motion in arrest of judgment.” By reason of the failure of the plaintiff in error to raise the question in the trial court, the objection was waived and cannot now be taken advantage of in this court. It is next contended that the pleas of set-off presented no defense to the action and that the court had no jurisdiction to entertain them, and it is urged that the court, by rendering judgment thereon in favor of the defendant in error, violated section i of article 4 of the constitution of the United States, which provides, “full faith and credit shall be given, in each State, to the public acts, records 'and judicial proceedings of every other State,” as it is said a set-off ágainst a judgment is not permitted by the laws of the State of Missouri. The validity of the judgments rendered in favor of plaintiff in error by the Missouri court, and upon which suit was brought, was not attacked, but full faith and credit were given thereto. Under the statute of this State, (Hurd’s Stat. 1903, chap, 110, sec. 19,) demands upon simple contracts may be set off against demands upon judgments, which statute includes a judgment rendered by a court of the State of Missouri as well as a judgment rendered by a court in this State. It has uniformly been held that each of the States of the Union may pass a law limiting the time within which an action may be brought in said State upon a judgment rendered in a court of another State, without thereby depriving the judgment of the full faith and credit which it is entitled to under the constitution of the United States. This holding is based upon the ground that a statute of limitations affects only the remedy, and that a limitation law is a law of the forum, and must control. (Metcalf v. City of Watertown, 153 U. S. 671.) It is also held that a plea of set-off is a plea to the remedy. (Mineral Point Railroad Co. v. Barron, 83 Ill. 365; Davis v. Morton, 5 Bush. 160; 96 Am. Dec. 345; Second Nat. Bank of Cincinnati v. Hemingray, 31 Ohio St. 168.) That being true, the statute of the State wherein the action is brought controls as to what character of set-off, if any, may be pleaded. When, therefore, suit is brought upon a judgment of another State in the courts of this State, as the statute of this State permits demands upon simple contracts to be offset against judgments, the statute of this State will control. Furthermore, the statute of the State of Missouri upon the subject of set-off was not in evidence, and the courts of this State without proof will not take judicial notice thereof. In Chicago and Alton Railroad Co. v. Wiggins Perry Co. 119 U. S. 615, it was said: “Whenever it becomes necessary, under this requirement of the constitution, (art. 4, sec. 1,) for a court of one State, in order to give faith and credit to a public act of another State, to ascertain what effect it has in that State, the law of that State must be proved as a fact. No court of a State is charged with knowledge of the laws of another State, but such laws are in that court matters of fact, which, like other facts, must be proved before they can/ be acted upon. This court, and the other courts of the United States when exercising their original jurisdiction, take notice, without proof, of the laws of the several States of the United States; but in this court, when acting under its appellate jurisdiction, whatever was matter of fact in the court whose judgment or decree is under review is matter of fact here. This was expressly decided in Hanley v. Donoghue, 116 U. S. 1, in respect to the faith and credit to be given by the courts of one State to the judgments of another State, and it is equally applicable to the faith and credit due in one State to the public acts of another.” A third ground of reversal urged is, that the liability of plaintiff in error to pay the defendant in error the debt due him by the Belleville and St. Louis Railway Company was determined in favor of plaintiff in error in the suit brought by said company, for the use of defendant in error, against plaintiff in error, in the circuit court of St. Clair county, and removed by the latter to the United States Circuit Court and judgment there rendered in his favor, which judgment was affirmed by the Circuit Court of Appeals, and therefore that question is in this suit res judicata. The exception to the referee’s report which is claimed to raise this question is the fifth, as follows: “The referee failed to find that the claim made that Leathe absolutely promised to pay the debts of the Belleville and St. Louis Railway Company had been adjudicated in favor of said Leathe and against said Thomas, as shown by the evidence.” The only error assigned in the Appellate Court which can be said to present for decision the ruling of the court on that exception is the general assignment of error: “The court erred in overruling exceptions of appellant to the report of the referee.” While the exception and assignment of error are entirely too general to properly raise the question of former adjudication insisted upon in the argument if the objection had been aptly made, the Appellate Court considered and decided that question. In the original argument in this court the defendant in error did not urge the point, and in passing upon the foregoing alleged error we reached the conclusion that, as applied to the third and fourth pleas, the circuit court erred in overruling the exception, and the argument on that branch of the case being mainly directed to those pleas, we reversed the judgments of the circuit and Appellate Courts and remanded the cause, inadvertently overlooking the issues made on the first and second pleas. As already shown, the first plea was the common counts in assumpsit, and the second was a special plea or count setting up facts showing that the plaintiff below was indebted to the defendant upon a certain contract between them and other parties which had no relevancy whatever to the alleged promise of the plaintiff to pay the debts of the Belleville and St. Louis Railway Company. The agreement set up in the second count bears date January 24,1893, and was executed by Edward L. Thomas, Samuel H. Leathe, Bart S. Adams and Luden M. Chipley, by which the other parties agreed to transfer to Samuel H. Leathe $255,000 of the stock of the Belleville and St. Louis Railway Company and to Luden M. Chipley $78,300 of said stock, they to furnish funds to carry on the construction of the railway and to negotiate and sell $500,000 of five per cent bonds of said company. The plea then shows that in pursuance of and in carrying out the objects and purposes of that agreement certain things were done by the parties and by said railway company, and concludes with the averment that the plaintiff sold said bonds in said contract mentioned for the sum of $500,000, which said sum he then and there received; that the plaintiff expended in building said railway under said contract the sum of $300,000; that there was, at the time of making said contract, due defendant a large sum of money, to-wit, the sum of $65,000, which was to be paid said defendant as in said contract specified; that said plaintiff, after receiving said sum so expended by him under said contract and agreement, had remaining in his hands, and still has, as the proceeds of the sale of said bonds, a large sum of money, to-wit, $200,000, out of which, by the terms of said contract, said sum so due said defendant, as aforesaid, was due and payable, by means whereof plaintiff became liable to pay to said defendant said sum of $65,000, which said sum of money so due from the plaintiff to the defendant, as aforesaid, exceeds the damages sustained by the plaintiff by reason of the non-payment by the defendant of the said several judgments in said declaration mentioned, and out of which said sum of money the defendant is ready and willing, and hereby offers, to set off and allow to the plaintiff, etc. The sufficiency of this and the preceding plea is in no way questioned as presenting subsisting causes of action, and it is not denied that a general judgment on the whole evidence is unaffected by the failure to sustain any other count. Our Practice act expressly provides that no judgment shall be reversed on the ground of a defective count if there remains a sufficient one to sustain the verdict, and it would seem to follow that no judgment should be reversed for a failure to prove one or more causes of action where others have been proven. The findings of the circuit and Appellate Courts are conclusive in this case that the evidence sustained the first and second counts of the declaration. In fact, it is not claimed that there was an absence of evidence fairly tending to prove the allegations of the first and second pleas. We have held that the finding of the referee is entitled to the same weight and credit as the verdict of a jury, and that the judgment of the Appellate Court, on appeal from that of the trial court, on his finding is final as to the questions of fact. (Story v. DeArmond, 179 Ill. 510; Butler v. Cornell, 148 id. 276.) We have carefully examined the exceptions filed to the referee’s report, and find no one of them which can be applied to the issues under the first and second pleas. It is insisted on behalf of plaintiff in error that these issues were ignored upon the trial; that the real question decided arose on the third and fourth pleas, and that the referee based his conclusions upon the findings of fact; that the plaintiff in error agreed, as a consideration for the conveyance to him, to pay tire debts of the railway company. There is a volume of evidence in the record, not abstracted, on the issues made on the second plea. There is also sufficient testimony shown by the record and abstract to authorize a recovery under the first plea, independent of the judgment of December 21, 1893. The finding of the referee is not based on any particular plea. That finding, and the judgment thereon, are as well supported by the first as by either the third or fourth plea. While the referee made the judgment for $53,022.23 in favor of the defendant the basis of his finding as to the amount due him, that fact does not prove that such judgment was the only evidence in the record upon which it could have been based. We have no means of determining on this record that the first and second pleas were not treated as presenting substantial issues in the case. The judgment of the Circuit Court of the United States, affirmed by the Circuit Court of Appeals, cannot affect the right of recovery under the first and second pleas, and evidently counsel for plaintiff in error so understood, the replication being general as to them, and the prior adjudication only-applied to the third and fourth pleas by replication. We think, therefore, that the judgment of the Appellate Court must be affirmed without reference to the third and fourth. In fact, counsel for plaintiff in error virtually concede that the cause of action set up in the second count is not barred by any former adjudication. They say: “It may be that Thomas has a right to an accounting under the contract of January 24, 1893, set up by him in his second plea of set-off. So far as the opinion of this court may be construed to deprive Thomas of this right we concede the opinion should be modified.” The question of damages is one of fact to be determined from the evidence, not reviewable in this court. Our conclusion is that the judgment of the Appellate Court must be affirmed. . Judgment affirmed.