{
  "id": 5152006,
  "name": "Henry Sawyer and Roswell S. Douglass v. Knute Nelson",
  "name_abbreviation": "Sawyer v. Nelson",
  "decision_date": "1895-06-03",
  "docket_number": "",
  "first_page": "46",
  "last_page": "50",
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      "cite": "59 Ill. App. 46"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "132 Ill. 335",
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    {
      "cite": "132 Ill. 327",
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  "last_updated": "2023-07-14T19:53:36.719815+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Henry Sawyer and Roswell S. Douglass v. Knute Nelson."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Shepard\ndelivered the opinion of the Court.\nThe appellee was arrested upon.a ca. sa. issued in a cause in the Superior Court, wherein the appellants obtained judgment against him for $1,361.05. He thereupon applied for and was granted leave by the County Court to schedule as an insolvent, and upon a hearing was discharged.\nFrom that judgment the arresting creditors, the appellants here, appealed to the Circuit Court, where, on verdict of a jury and judgment, he was again discharged, and this appeal has followed.\nUpon the trial in the Circuit Court the declaration in the original suit in the Superior Court was introduced in evidence by the appellants. That declaration was in an action of trespass on the case, and consisted of three counts, in the first two of ivhich malice was charged as the gist of the action, and the third of which \"was an ordinary count in trover.\nF\u00edo proof was made, or attempted, of what evidence was heard in the Superior Court in support of the declaration in that suit, and it seems that the judgment was taken by default of the appellee; and although the judgment in the Superior Court ivas offered in evidence it was excluded, and no question, either by argument or assignment of error, is made here that it was wrongly so done.\nThere can be no inference from the declaration in the Superior Court case that the judgment there rendered was upon the counts that charged malice rather than upon the count in trover that did not. Kitson v. Farwell, 132 Ill. 327.\n\u201c If it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated \u2022and upon which the judgment was rendered, the whole subject-matter of the action will be at large, and open to anew contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.\u201d Russell v. Place, 94 U. S. 606.\nIt is impossible to determine from the declaration alone, and even though the judgment had been introduced and would have shown a finding of the issues generally for the plaintiffs, it would have been equally impossible from that, to determine whether the appellee had been found guilty of the fraud and malice charged in either of the two first counts, or of a mere finding and taking under the trover count. Proof of what was alleged under either count would sustain the judgment. And it can not be said with certainty what the judgment would have been if the count in trover had not been in the declaration. Kitson v. Farwell, supra.\nThe burden was upon the appellants, who invoked the estoppel of the Superior Court judgment, to show with reasonable certainty what the facts were upon which that judgment rests. Althrop v. Beckwith, 14 Ill. App. 628; Kitson v. Farwell, supra.\nBut it is argued under the assignment of error that the verdict was against the evidence; that it appears from the testimony of the appellee in this cause that the matters constituting the fraud and malice charged in the first count of the declaration in the Superior Court suit, were sustained and were true. We will not attempt a detailed analysis of appellee\u2019s testimony. The jury under most favorable instructions for the appellants did not so regard appellee\u2019s testimony, and neither do we. He testified explicitly and particularly to the truth of every item of the statement which he gave to appellants, and which furnished the basis of the charge of fraud in said first count; and, taken as a whole, his testimony quite thoroughly overcame all the charges of fraud made against him, in either count of the declaration, on-account of his transactions with appellants.\nAnd so, even though, as contended by appellants, the onus was upon him to show the judgment in the case was not for the fraud and malice charged in the two first counts of the declaration, we think he succeeded, there being no extrinsic evidence except that found in his own testimony and in the statement which was the basis of the credit given him by appellants, to the truth of which he testified, of what the transactions were that were declared upon in the Superior Court suit.\nWhatever may have been previously decided by this court in cases partaking of the character of this one, we must now hold that whenever they conflict with what is laid down in Farwell v. Kitson, supra, the latter must prevail. The substantial questions involved in this appeal were decided in that case, and we have endeavored to follow it.\nFrom what we have said it follows that there was no error in the refusal of the peremptory instruction asked by appellants, to find that the first of the action or judgment upon which appellee was arrested was malice.\nThe instruction given for appellee, that fraud is not to be presumed but must be proved by him who alleges it, is also the correct doctrine, as laid down in the cases already cited.\nIf there wTould, otherwise, have been error in the admission of evidence of the conversation between appellee and his attorney, there was none here, for the reason that appellants had elicited part of the conversation, and it then became the right of appellee to have it all put in.\nIt is, finally, assigned for error that the Circuit Court adjudged as costs against the appellants, the costs of the appeal from the County Court.\nThe only reasons given why such adjudging was wrong, were mere irregularities, at most, and unless they were such irregularities as would cause a reversal, which they were not, it was right to adjudge costs against appellants, as was done.\nWe see no error in the record, and therefore affirm the judgment of the Circuit Court.",
        "type": "majority",
        "author": "Mr. Justice Shepard"
      }
    ],
    "attorneys": [
      "Cratty Bros., MacLaren, Jarvis & Cleveland, attorneys for appellants,",
      "Chytraus & Deneen, attorneys for appellee,"
    ],
    "corrections": "",
    "head_matter": "Henry Sawyer and Roswell S. Douglass v. Knute Nelson.\n1. Judgments\u2014Identity of the Cause of Action.\u2014Where a declaration contained two counts in which malice was charged as the gist of the action, and one an ordinary count in trover, there can be no inference that a judgment rendered in the suits was upon the counts charging malice rather than upon the count in trover, which did not.\n2. Same\u2014Cause of Action\u2014Extrinsic Evidence.\u2014Where several matters have been litigated in one action, upon one or more of which judgment has been entered, without indicating upon which, the whole subject-matter of the action at large will be open to a new contention unless such uncertainly be removed by extrinsic evidence showing the precise point involved\u00bband determined.\n3. Evidence\u2014Judgments\u2014When Not Conclusive of Malice\u2014Insolv enay.\u2014In a case tried in the Superior Court, the declaration contained counts charging malice and one count in trover. A judgment having been rendered generally for the plaintiff, and afterward the question of the defendant\u2019s discharge as an insolvent coming up in the Circuit Court, it was held, in the absence of evidence showing upon which count the judgment was rendered, that the court could not infer that it was upon the counts charging malice as the gist of the action rather than upon the count in trover.\n4. Same\u2014Of Conversations.\u2014Where one party elicits a part of a conversation it is the right of his opponent to have the whole of it.\n5. Estoppel\u2014Burden of Proof.\u2014The burden of showing with reasonable certainty, what were the facts upon which a judgment rests, is upon the party who invokes it as an estoppel.\n6. Fraud\u2014Not to be Presumed. \u2014Fraud is not to be presumed; it must be proved by him who alleges it.\n7. Costs\u2014In Insolvency Proceedings\u2014Appeals from the County Court. \u2014On an appeal by the contestant, from the. County Court, in the matter of the application of an insolvent for his discharge, to the Circuit Court it is proper for the Circuit Court to adjudge as costs against the contestant, he being the unsuccessful party, the costs of the appeal from the County Court.\nProceedings Under the Insolvency Act,\u2014Appeal from the Circuit Court of Cook County; the Hon. George F. Blanke, Judge, presiding. Heard in this court at the March term, 1895.\nAffirmed.\nOpinion filed June 3, 1895.\nCratty Bros., MacLaren, Jarvis & Cleveland, attorneys for appellants,\ncontended that the issue for the jury was, and the burden of proof was on the appellee to show that he was found guilty under the count in trover; citing Mahler v. Sinsheimer, 20 Ill. App. 401; Kitson v. Ellinger, 35 Ill. App. 57.\nChytraus & Deneen, attorneys for appellee,\ncontended that the burden of showing that appellee was found guilty under the counts charging malice, was upon the appellant. The onus of establishing an estoppel is by law cast upon him who invoices it. 1 Freeman on Judgments, Sec. 276, pg. 502, and authorities cited.\nIt is enough that the imprisoned debtor offers to surrender his property and asks to be discharged. It is for the judgment creditors to set up that the judgment upon which the writ was issued was rendered in a suit in which malice on the part of the petitioner was the gist of the action. Kitson v. Farwell, 132 Ill. 335."
  },
  "file_name": "0046-01",
  "first_page_order": 44,
  "last_page_order": 48
}