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Swartz v. Jones

OPINION FILED MARCH 3, 1950

ROSS C. SWARTZ, APPELLANT,

v.

FRANK P. JONES AND JOHN E. HYATT, APPELLEES.



Appeal by plaintiff from the Circuit Court of DeWitt county; the HON. MARTIN E. MORTHLAND, Judge, presiding. Heard in this court at the February term, 1950. Reversed and remanded. Opinion filed March 3, 1950. Released for publication March 29, 1950.

MR. JUSTICE DADY DELIVERED THE OPINION OF THE COURT. This is an action to revive a judgment.

The complaint filed by plaintiff appellant, Ross C. Swartz, in the circuit court of DeWitt county on March 17, 1948, alleged that on July 29, 1940, a judgment was entered in said court in favor of H.O. Feldmann, as agent of shareholders of the John Weedman National Bank of Farmer City, and against the defendants appellees, Frank P. Jones and John E. Hyatt, for $4,857.17 and costs of suit, that such judgment was entered in judgment docket "H" on page 233, and recorded in "Confession Open Court and Vacation Docket 7," that thereafter on, to-wit, September 6, 1941, said H.O. Feldmann, as such agent, by his assignment and writing of that date, for a valuable consideration, sold, assigned, transferred and set over to the plaintiff said judgment, and that said judgment was in full force and was due plaintiff as such assignee. The complaint prayed that said judgment be revived and declared in full force and effect, and that judgment be entered thereon against the defendants for $6,697.17.

Attached to and by reference made a part of the complaint was a copy of said alleged assignment dated September 6, 1941, which stated that Feldmann, as agent of the shareholders of said bank for a valuable consideration, assigned to Swartz all of his right, title and interest in and to the judgment in question. Attached to the assignment was a certificate of acknowledgment dated September 6, 1941.

The amended answer of the defendants denied all of the allegations of such complaint.

By way of affirmative defense, such answer alleged that Feldmann was not the duly authorized and lawful agent of said shareholders at the time of the purported assignment, that such assignment was illegal and void for the reason that it was beyond the scope of the power and authority of Feldmann to act as such agent, and that the alleged judgment was never assigned by Feldmann purporting to act as such agent.

By way of affirmative defense, such answer then alleged that such alleged judgment was based on a promissory note dated August 29, 1928, for $3,000, payable to said bank, signed by W.G. Shell, and by the defendant John E. Hyatt as "J.E. Hyatt," and by the defendant Frank P. Jones as "F.P. Jones," that Swartz or his predecessors in title had theretofore executed an instrument releasing Shell from said obligation and thereby, by law, had released the present defendants from said obligation.

The case was tried without a jury. At the conclusion of all of the evidence the court entered judgment in favor of defendants. Plaintiff appeals.

Plaintiff introduced in evidence the written assignment referred to in the complaint. No other written assignment was offered. Later it was affirmatively proved by defendants that by an order of the United States District Court, for the Southern District of Illinois, Feldmann was duly discharged as such agent on July 3, 1942. Defendants then proved that such alleged assignment was not executed or delivered to the plaintiff until sometime in August 1946. Plaintiff apparently no longer relies on such written assignment. Therefore we do not consider it necessary to make further comment thereon.

After due proof of their authenticity, the court admitted in evidence, over the objection of defendants, a record of said circuit court labeled "Judgment and Execution Docket `H,'" and a record of said court labeled "Confessions Open Court and Vacation 7." The court also admitted in evidence over the objection of defendants certified copies of records of the United States District Court, for the Southern District of Illinois, in a cause designated as cause "No. 1678."

Defendants assign as cross-error the admission of all of such records. We consider it sufficient to say that it is our opinion that there is no merit to any of such cross-errors.

Such documentary evidence shows the following:

(1) On April 23, 1932, such District Court in cause 1678 entered an order which found that said Feldmann was duly appointed receiver of the bank in question on February 19, 1932. Such order ordered that such District Court take jurisdiction of the receivership of said bank.

(2) On July 29, 1940, a judgment by confession was entered in said Circuit Court in favor of H.O. Feldmann, as agent of shareholders of the bank in question, and against Frank P. Jones and John E. Hyatt, for the sum of $4,857.17 and costs of suit.

(3) On May 15, 1941, such District Court entered an order in cause 1678 which found that at a meeting of the shareholders of said bank on December 29, 1936, said Feldmann was duly elected and qualified as "Agent of Shareholders" of said bank, that from March 13, 1937, Feldman had been and was the duly elected and acting receiver of said bank, that there had come to the possession of Feldmann, as such agent, one promissory note dated August 8, 1928, executed by W.G. Shell, J.E. Hyatt, and F.P. Jones for $3,000, bearing interest at 7 per cent per annum, maturing six months after date, that there was due thereon a principal balance of $2,405.75, that said note had been charged off prior to the suspension of the bank, that on July 22, 1940, in said Circuit Court said agent recovered a judgment on said note against J.E. Hyatt and F.P. Jones in the amount of $4,857.17 and costs, that the liabilities of Shell exceeded his assets by $2,575.42, and that Shell had offered to pay $150 for a covenant not to sue him upon ...


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