Kyser v. Miller

Me. Presiding Justice Thompson delivered the opinion of the court. The appellee has made a motion in this court to dis-. miss' the appeal so far as the same affects the judgment of the Circuit Court of December 30, 1907, on the issue of estoppel, on the ground that it is a final judgment and no appeal lies therefrom unless prayed and perfected at the term at which it was rendered. There was only one issue in the case when the first trial occurred. The jury when it found that issue for the plaintiff did not assess plaintiff’s damages. On November 7, 1907, the appellant by leave of court refiled the plea of the general issue. Thereafter on November 19, appellee moved for judgment on the verdict of estoppel. The judgment rendered December 30, on the issue of estoppel, did not dispose of the case and was not a final judgment, and no appeal could he taken therefrom until a final judgment disposing of the case was rendered. Wenom v. Fossick, 213 Ill. 70, 115 Ill. App. 605; Practice Act of Ill. sec. 91. The motion to dismiss the appeal is therefore overruled. Appellant assigns for error that the trial court erred in overruling the demurrer to the replication of estoppel, filed in answer to the special pleas, which sets up facts which bring the consideration of the note within the provisions of the Criminal Code. Section 130 of the Criminal Code provides that whoever contracts to give another the option to buy or sell at any future time grain, etc., shall be fined, etc., and all contracts made in violation of this section shall be considered gambling contracts and shall be void. Section 131 provides that all notes made by any person where the whole or any part of the consideration shall be for money won by any gaming shall be void. Section 136 provides that no assignment of any such note shall in any manner affect the defense of the person executing the same. If the note was void because it was given for an illegal consideration, is the appellant estopped to plead the defense given to Mm by the statute, because he said to the appellee, before appellee purchased the note, that it was not given for any illegal consideration or any consideration which was contrary to the laws of the State of Illinois and thereby induced appellee to buy the note? The statute makes a note given in a gambling transaction void in the hands of an innocent purchaser, not as a favor to the signer of the note, but as a matter of public policy. If what appellant said can be construed as a promise there was no consideration for it and it was nothing more than a promise to pay a gambling debt. It was only a repetition of the original act of making the note. If a contract which is void or of no effect under the statute can be made a legal and valid contract by a subsequent statement of the maker, then the public policy of the state as declared by the statute can be forestalled, and the statute made of no effect. “It has been in general terms held that there cannot be any estoppel against showing that a contract is made void by the statute.” Dow v. Higgins, 72 Ill. App. 303; Treat v. Snydecker, 92 Ill. App. 458; Burkee v. People, 53 Ill. App. 396, affirmed in 155 Ill. 354; Shenk v. Phelps, 6 Ill. App. 612; Bigelow on Estoppel, 558, note; Rosebrough v. Ansley, 35 Ohio St. 107; Coppell v. Hall, 7 Wall. (U. S.) 542; Oscanyan v. Arms Co., 103 U. S. 268. We hold that a contract which is made void by the statute as being against public policy cannot be made valid by matter of estoppel. The court erred in overruling the demurrer to the replication to the special pleas, and the trial on the replication of estoppel was upon an immaterial issue. The judgments on the two verdicts are reversed, and the case is remanded for further proceedings in conformity with the opinion of this court. Reversed and remanded.