Nelson v. Humes

Pillsbury, P. J. From an examination of the record, it is clear that the jury found in favor of the defendants upon the issue made by the plea of usury as they only allowed a recovery for the principal sums loaned after deducting all payments made. The bill of exceptions shows that the court over the objection of plaintiff permitted the jury upon their retirement from the bar to consider of their verdict, to take the affidavit of Joseph Humes, deceased, made by him in support of his motion to set aside the default. Referring to the affidavit, it appears, that he under oath, details all the facts and circumstances connected with the execution of the notes, and showing very clearly that usury had been reserved in the loan for which the notes were given. In this action of the court there was error for which the judgment in eaeli case must be reversed and the cause remanded. Counsel for the appellees say that the bill of exceptions does not correctly state the facts, but counsel must be aware of the rule of practice that makes the record filed in tills court conclusive upon us as to all matters of fact certified to by the judge who tried the cause. The instructions seein to be proper under the evidence. Although no cross-error is assigned upon the record it may not be improper for us to suggest that a joint judgment against the surviving maker of the note and the pei’sonal representative of the other maker can not well be sustained under the authorities: Eggleston v. Buck, 31 Ill. 254. Judgment reversed.