Duncan v. Journey

Mr. Presiding Justice Baume delivered the opinion of the court. This is an appeal from a judgment of the Circuit Court of Jersey county against áppellants for costs and in bar of their action following an order sustaining a demurrer interposed by appellee to appellants’ declaration. After reciting that appellants came, and according to the form of the statute in such case made and provided suggest to the court, the declaration alleges that appellee, Journey, was on February 1, 1907, indebted to appellants in the sum of $800 for the use and occupation of certain lands and tenements held, used and occupied by said appellee at his request, and described in the declaration and judgment in a certain action of ejectment, in which the appellants were plaintiffs and one George Tucker was named as defendant, and which cause was decided in favor of appellants at the March term, 1906, of the Circuit Court of Jersey county; that at the time said ejectment suit was commenced said Tucker was in possession and occupied said lands under and in privity with appellee, and that said Tucker is insolvent; that appellee had actual notice of the pendency of said ejectment suit against said Tnclcer and had opportunity to defend the possession of said Tucker; that appellee did defend the possession of himself and said Tucker by procuring counsel and being present and advising with them during the progress of the trial of said ejectment suit, and that appellee was in fact a defendant in said suit although not nominally a party thereto, and was bound by the judgment rendered therein. The action is sought to be maintained under the provisions of the Ejectment Act relating to the recovery of mesne profits, section 43 of which act is, as follows: “Instead of the action of trespass for mesne profits, the plaintiff seeking to recover such damages shall, within one year after the entering of judgment, make and file a suggestion of such claim, which shall be entered, with the proceedings thereon, upon the record of such judgment, or be attached thereto, as a continuation of the same.” Hurd’s Stat. 1905, 849. "While appellee, having had notice of the pendency of the ejectment suit and an opportunity to defend the possession of the actual occupant, Tucker, may be bound by the judgment in that action against Tucker, he was not a party defendant in that action and is, therefore, not liable upon a statutory suggestion of claim for mesne profits predicated upon such judgment in ejectment. The statutory proceeding here sought to be invoked was manifestly intended to bear a direct relationship to the judgment in ejectment which must necessarily precede it, and the only proper defendant in such proceeding is the party against whom the judgment in ejectment was entered. Snow v. McCormick, 43 Ill. App. 537; Marshall v. Eggleston, 82 Ill. App. 52. The demurrer to the declaration was properly sustained and the judgment will be affirmed. Affirmed.