text:
    John Claflin, Exr., et al. v. Edward F. Dunne.

      Filed at Ottawa June 15, 1889.

    1. Death of defendant—pending suit—judgment afterward—void or ‘voidable. If jurisdiction be obtained of the person of a defendant in his lifetime, by service of process or appearance, a judgment against him after his death is not void, but only voidable. And while such a judgment can not be attacked collaterally, it maybe reversed on error, if the fact of the defendant’s death appears from the record; if not, the judgment may be vacated, upon motion, in the court where it was rendered.
    2. Same—former decision. In Life Association v. Fassett, 102 Ill. 315, the question was not before this court whether a judgment against a defendant, rendered after his death, was void or voidable, and so much of the opinion as holds it void is obiter dictum, and binding on no one.
    3. Same—remedy to set aside such jvidgment. The rendering of judgment against a deceased defendant after plea filed is an error in fact, which, by section 67 of the Practice act, may be reached and corrected, upon motion, at any time within five years. A motion in the trial court to vacate such a judgment is a direct proceeding, and calis in question its legality, and it is error to refuse such motion when it is made to appear that the defendant was dead when the judgment was rendered.
    4. Judgment—against several—vacated as to one, must be as to all. "Where one of the defendants in a suit has died before the trial and ■entry of judgment for the plaintiff, if the judgment be vacated as to the deceased defendant it must be as to all the defendants. A judgment for money against several is a unit as to all, and if erroneous as to •one it is erroneous as to all.
    5. Appeal—what matters to be considered. On appeal from the Appellate Court, an amended or additional record not before that court can not be considered. This court acts upon the record which was before the Appellate Court, and that alone.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      On the 20th day of January, 1887, appellee, Edward F„ Dunne, recovered a judgment in an action of assumpsit, in-, the Superior Court of Cook county, against Horace B. Claflin, Edward C. Eames,' Horace J. Fairchild, William S. Dunne, Dexter N. Force, Daniel Robinson and John Claflin, for the-sum of $2500. On the 22d day of May, 1888, John Claflin,. as executor of the estate of Horace B. Claflin, filed a motion, to set aside and vacate the judgment, on the ground that Horace B. was dead at the time the judgment was rendered. On. the same day a like motion was entered by all the other defendants. The court overruled the motions so entered, and. the judgment, on appeal, was affirmed in the Appellate Court. The action which resulted in the judgment sought to be vacated, was brought on the first day of March, 1884, the declaration-containing the common counts. On the 13th day of March, 1884, the defendants, and each of them, by counsel, filed a. plea of non-assumpsit. No trial was, however, had until January 20, 1887, when, by agreement of counsel representing: the plaintiff and defendants, a jury was waived, and the issues-were tried before the court, resulting in a judgment for plaintiff, as above stated. On the application to vacate the judgment, it was proven, by affidavits and by an exemplified copy of the will of Horace B. Claflin, and probate thereof, that he.died on the 14th day of November, 1885.
    Messrs. Kbaus, Mayeb & Stein, for the appellants:
    The fact that H. B. Claflin was dead at the time the ease-was tried and judgment rendered, renders it invalid and erroneous as to him. Rev. Stat. 1874, chap. 1, sec. 12; 2 Tidd’sPr. *1137; Freeman on Judgments, sec. 153; Life Association v. Fassett, 102 Ill. 315; Brown v. Parker, 15 id. 308; Griswold v. Stewart, 4 Cow. 457; Colson v. Wade, 1 Murphy, 42; Morrison v. Deaderick, 10 Humph. 342; Tedie v. Dill, 3 Kelly, 104; Burke v. Stokely, 65 N. C. 569; Kelly v. Hooper, 3 Yerg. 395; Carter v. Carriger, id. 411; McCreery v. Everding, 44-Cal. 284; Railroad Co. v. Bozworth, 8 La. Ann. 80; Hood v. Branch Bank, 9 Ala. 335; Hill v. West, 1 Binn. 486; Hooc v. Barber, 4 H. & M. 439; Sturges v. Vanderbilt, 73 N. Y. 384 ; Swazey v. Antram, 24 Ohio St. 87; Hamilton v. Holcomb, 1 Johns. Cas. 29; Tarleton v. Cox, 43 Miss. 430; Richards v. Walton, 12 Johns. 434; Young v. Pickens, 45 Miss. 553; Case v. Rivelin, 1 J. J. Marsh. 29; Moke v. Brackett, 28 Texas, 154; Mills v. Alexander, 21 id. 154; Collins v. Mitchell, 5 Fla. 372 ; Yaple v. Titus, 41 Pa. St. 105; Hayes v. Shaw, 20 Minn. 405 ; Collins v. Knight, 3 Tenn. Ch. 183; McCulloch v. Norwood, 58 N. Y. 562; Morton v. Jamison, 23 La. Ann. 102.
    The judgment is an entirety, and if erroneous and invalid as to Horace B. Claflin, deceased, should be reversed m foto. Jansen v. Varnum, 89 Ill. 100; Williams v. Chalfant, 82 id. 218; Earp v. Lee, 71 id. 197; Goit v. Joyce, 61 id. 489; Mack v. Brown, 73 id. 295; Ragor v. Kendall, 70 id. 95; Smith v. Byrd, 2 Gilm. 412; Rees v. City, 38 Ill. 322; Enos v. Capps, 12 id. 255; Brockman v. McDonald, 16 id. 112; McDonald v. Wilkie, 13 id. 22; Rider v. Alleyne, 2 Scam. 474; Cruikshank v. Gardner, 2 Hill, 333; Holbrook v. Murray, 5 Wend. 161; Camp v. Barnett, 16 id. 49; Sheldon v. Quinlen, 5 Hill, 441; Harman v. Brotherson, 1 Denio, 537; Mackay v. Gordon, 34 N. J. L. 286; Hatt v. Williams, 6 Pick. 246; Morrow v. Langan, 16 Bradw. 507; Tetzner v. Naughton, 12 id. 160; Dally v. Young, 3 id. 39.
    Mr. John Maynard Harlan, and Messrs. Smith & Pence, for the appellee:
    A judgment against a dead man, over whom, during his lifetime, the court had acquired 'jurisdiction, is not void, but at most only voidable. Freeman on Judgments, secs. 140,153; Danforth v. Danfortli, 111 Ill. 236; Stoetzell v. Fullerton, 44 id. 112; Hayes v. Shaw, 20 Minn. 405; Collins v. Knight, 3 Tenn. Ch. 183; Coleman v. McAnulty, 16 Mo. 173; Spaulding v. Wathen, 7 Bush, 659; Warder v. Tainter, 4 Watts, 278;
      Ames v. Webbers, 10 Wend. 576; Lopez v. DeTasel, 8 Taunt. 712; Cooley’s Const. Lim. (5th ed.) 408, 409.
    A judgment against a dead man, over whom the court’s jurisdiction had become complete during his life, being voidable, only, the person at whose instance it is voidable must be able to show good faith, diligence, and reasons why it would be inequitable, as against him, to permit the judgment to remain in force. Cooley’s Const. Lim. (4th ed.) 408, 409 ; Herman on Estoppel, secs. 821, 823; Camp v. Mosely, 2 Fla. 171 ; Canal Co. v. Hathaway, 8 Wend. 4,83; Marine Bank v. Fulton Bank, 2 Wall. 252; Fort v. Monroe, 20 Wend. 210; Holbrook v. Wight, 24 id. 169; Jencks v. Smith, 1 Cow. 94; 2 Saunder’s PL and Ev. 55; Littech v. Mitchell, 73 Ill. 603; Stock Yards v. Himrod, 88 id. 38.
    The judgment against the partners composing the firm of H. B. Clafiin & Co, is joint and several. Therefore, even if the judgment be set aside as to H. B. Clafiin because of his death before judgment, it can and should be upheld as to the other defendants. Ladd v. Griswold, 4 Gilm. 25; Mason v. Tiffany, 45 Ill. 393; Silverman v. Chase, 90 id. 37; Cassaday v. Trustees of Schools, 105 id. 561; Doggett v. Dill, 108 id. 560; Collyer on Partnership, sec. 580; Lindley on Partnership, 1053; Childs v. Hyde, 10 Iowa, 296; Hood v. Branch Bank, 9 Ala. 335; Hill v. West, 1 Binn. 486; Hamilton v. Holcombe, 1 Johns. Cas. 729 ; Hooc v. Barber, 4 H. & M. 439; O’Brien v. People, 41 Ill. 456; Kennedy v. Evans, 31 id. 259 ; Murphy v. Orr, 32 id. 489.
   Mr. Justice Craig

delivered the opinion of the Court:

The first inquiry presented by the record for determination is, whether the judgment rendered against Horace B. Clafiin is void, or is it voidable, only. It will be observed that this is not a case, in its facts, where the action was instituted against a dead person, and a judgment followed. In such a ease it may be conceded that the judgment would be void, on the ground that the court never acquired jurisdiction of the person of the defendant; but this case stands upon a different basis, and must be decided upon different grounds. Here the action was commenced while Claflin was alive. He appeared in court and pleaded to the action. The court thus had jurisdiction of the subject matter and of the person, and the question arises, whether, after the filing of the plea, the death of Claflin, without notice of the death being brought to the attention of the court, deprived the court of jurisdiction to render a judgment in the cause. The question is one not free from difficulty, and one, too, upon which the authorities are not harmonious. Freeman on Judgments, (sec. 140,) says: “If jurisdiction be obtained over the defendant in his lifetime, a judgment rendered against him subsequently to his death is not void.” In section 153 the author says: “Judgments for or against deceased persons are not generally regarded as void on that account, * * * and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears upon the record, or by writ of error coram nobis, if the fact must be shown aliunde.” The same doctrine has been announced by the Supreme Court of Pennsylvania. (Warder v. Tainter, 4 Watts, 278; Yople v. Titus, 41 Pa. St. 203.) In the last case it is said: “Now it would seem to be well established, that in civil proceedings against a person, his death does not so completely take away the jurisdiction of a court which has once attached, as to render void a judgment subsequently given against him. The judgment is reversible on error if the fact and time of death appear in the record, or in coram nobis, if the fact must be shown aliunde; but it is not void.” See, also, Coleman v. McAnulty, 16 Mo. 173; Spalding v. Wathen, 7 Bush, 662; Reed v. Holmes, 127 Mass. 326; Swasey v. Autram, 24 Ohio St. 87.

Whether a judgment rendered against a deceased person after he had pleaded to the action, like the one in question, is void or voidable, is a question which has never been directly presented to this court. Similar questions have, however, been passed upon by this court. In Camden v. Robertson, 2 Scam. 508, an action of debt was brought in the name of two plaintiffs. On the trial of the cause the circuit court allowed the defendant to prove that one of the plaintiffs was dead before the action was brought. On appeal, it was held that the evidence was inadmissible. It is there said: “If one of the plaintiffs had died before the commencement of the suit, that fact was no bar to the action, and could only be available to the defendant by pleading in abatement.”

In Stoetzell v. Fullerton, 44 Ill. 108, where one of the plaintiffs had died pending an action of assumpsit, it was claimed that the judgment, execution issued thereon, and sale under the execution, were void, and might be attacked in a collateral proceeding; but the court held otherwise. It is there said: “The death of Church pending the suit was a fact which might have been pleaded in abatement, but the defendant chose rather to try the cause on its merits. It is very clear that under this plea he could not give in evidence the.death of one of the plaintiffs. If this be so, then, surely, he ought not to be allowed to give the fact in evidence in another action, and by that proof nullify the judgment. * * * The error, if it be one, was an error of fact, which could only be corrected by a writ of error coram nobis.”

In Danforth v. Danforth, 111 Ill. 236, where the defendant died after the cause had been taken under advisement, and a judgment reversing the judgment of the Appellate Court was subsequently entered, on application, the judgment was allowed to be entered as of the date when the cause was submitted. The judgment of reversal, the defendant being dead, was held to be irregular, but not void. It is there said: “Where the sole defendant is dead when the suit * * * is brought, 'it may be true that a judgment against the deceased defendant is a nullity, for the reason that the court never acquired juris•diction of the cause. * * * But that is not the ease here. Here the court, before taking any steps, was clothed by the -■act of the qiarties and the law with full jurisdiction and rightful authority to render the judgment it did. Did the death of appellee, not brought to the notice of the court by plea, suggestion or otherwise, deprive it of such jurisdiction, lawfully ■acquired ? We think not.”

While these cases do not, in terms, decide the question here involved, yet the plain inference to be drawn from all of them is, that a judgment like the one in question, rendered against .a deceased person, is not void. Reference has, however, been añade to Life Association of America v. Fassett, 102 Ill. 315, as a case holding that a judgment against a deceased person is void. It is said in that case, in plain language, that a judgment rendered against a° deceased person is void; but upon ■an examination of the facts there involved, it will be found that no such question was presented in that record. Whether ;a judgment against a deceased person was void or voidable, •did not arise in that case, and whatever may have been said upon that branch of the case is obiter dictum, and binding upon no one. As said before, there are authorities holding that a judgment rendered against a deceased person is void, but we ■think the weight of authority and the reason of the rule is, that such a judgment is not void, but voidable. But while a judgment of this character can not be attacked collaterally, it may be reversed on error, if the fact of the defendant’s death .appears from thfe record. If not, the judgment may be vacated by motion in the court where the judgment was rendered. It is an error of fact, which may now be reached by motion, but -which was formerly reached by writ of error coram nobis. Section 67 of the Practice act authorizes the motion to be made .at any time within five years after rendition of final judgment. When the motion is made under the statute, the question does mot arise collaterally, as is supposed, but the motion to vacate, like a writ of error in a proper ease, is a direct proceeding, and calls in question the legality of the judgment.

We think the judgment was erroneous as to Horace B. Claflin, and the Superior Court erred in not vacating it on motion entered for that purpose.

But it is claimed, that although the judgment may be vacated against Horace B. Claflin, it should be sustained as to-, the other defendants. We do not concur in this view. The-judgment is a unit as to all the defendants, and if erroneous as to one, it is erroneous as to all. Cruikshank v. Gardner, 2 Hill. 333; Sheldon v. Quinlon, 5 id. 441; Williams v. Chalfant, 82 Ill. 218; Jansen v. Varnum, 89 id. 100; Earp v. Lee, 71 id. 194; Goit v. Joyce, 61 id. 489; Tedlie v. Dill, 3 Kelly, (Ga.) 104. The last case cited was an action of assumpsit against several defendants, including* one who was dead at the time of the rendition of judgment. It is there said: “A judgment, as being an entire thing, can not be reversed in part and stand good as to the other part, or be reversed as to one party and remain good against the rest.”

An amended record has been filed in this court, showing-that a motion was made to vacate the judgment on a prior-day, and overruled, from which no appeal was taken or writ of error sued out. That record was not before the Appellate-Court, and can not be considered here. If the record was defective it ought to have been amended in the Appellate Court.. This court acts upon the record which was before the Appellate-Court, and that alone.

We think the Superior Court erred in refusing to vacate the-judgment, and the judgment of the Superior and Appellate Courts will be reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Shore

license: Public Domain

text:
    Porter S. West v. James S. Carter.

      Filed at Ottawa June 15, 1889.

    1. G-amkhng contracts—what will constitute — as to premiums by agricultural societies, etc. Agricultural societies, stock and other associations, organized for the purpose and having for their object, among' others, the improvement of domestic animals, and to induce competition and rivalry in their importation and development, may offer premiums or purses to exhibitors of such animals, without being guilty of violating the Criminal Code. But the law will not tolerate any shift or device upon the part of such associations or individuals whereby gambling is intended or permitted.
    2. Same—judgment upon a gambling contract — void. A judgment rendered upon any promise or other contract, when the whole or any part of the consideration thereof shall be for any money, property or other valuable thing won by any gaming, or by wager or bet upon any race, etc., is made, by section 131 of the Criminal Code, not only voidable, but absolutely “void and of no effect,” whether confessed or otherwise ; and such judgment can not be vitalized by the action of any court.
    3. Same—jurisdiction in chancery—whether defeated because of a legal defense neglected. In such a ease, the rule that courts of chancery will not take jurisdiction when there was a valid defense or remedy at law, must yield to the requirements of the statute. It therefore makes no-difference that a defense was, or might have been, made in the suit at law to recover upon the illegal contract.
    4. Same—who may complain, as a “person interested.” Section 135 of the Criminal Code, giving courts of equity jurisdiction to set aside contracts, etc., made contrary to the provisions of that code, limits its power to grant relief to bills filed for that purpose by the person executing such contracts, or by his executors or administrators, or by any creditor, heir, devisee, purchaser, “or other person interested therein, or, if a judgment, the same may be set aside on motion of any person aforesaid,” etc.: Held, that the voluntary surety on an appeal bond given on appeal from a judgment on a gambling contract, is not a “person interested therein,” and therefore can not maintain a bill to-set aside such judgment.

      Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of •Cook county; the Hon. Egbebt Jamieson, Judge, presiding.
    At the June meeting of the Chicago Driving Park Association, the association advertised to give a purse of $300 to a •class of horses known as “gentlemen’s roadsters, ” to be owned in Cook county, and to be driven by the owner: An entrance fee of $15 was charged, which was to be added to the purse .•given by the association, and the whole to be divided into four prizes, the horse taking three heats to receive fifty per cent of rthe purse; the second, twenty-five per cent; the third, fifteen per cent; and the fourth, ten per cent,—the trotting to take place at the driving park grounds, and to he under the rules •of the National Trotting Association. West and three others made entries of horses, and paid the entrance fee of $15 each, ■which, added to the $300 contributed to the purse by the driving park association, made $360. At the meeting, West claimed that the horse entered by him won, and was entitled to the first money,- which being disputed by the officers of the association, West brought suit before a justice of the peace, and recovered judgment for fifty per cent of the purse, or $180, from which judgment the driving park association appealed to the ■circuit court of Cook county, filing the statutory appeal bond, with appellee, James S. Carter, as security, which was approved. In the circuit court, the appeal was subsequently •dismissed for want of prosecution, and procedendo awarded, •etc. The judgment not having been paid, West brought suit -on the appeal bond, in debt, in the Superior Court of Cook county, making the driving park association and Carter defendants. Carter alone appeared, and pleaded that the judgment rendered by the justice was founded upon a gambling contract,—that is, upon a horse race,—and that the judgment :and bond were void, and that the said judgment was based ■upon a gambling contract,—that isr a wager upon a horse race; that the judgment was obtained by default, and that it was by mistake that no defense was made, etc. Replication was filed denying that the judgment was founded upon a gambling contract. Upon the issue thus presented, the Superior Court found for the defendant, and rendered judgment against West for costs, which judgment was, on appeal to the Appellate Court for the First District, reversed, and the cause remanded, that court holding that Carter could not interpose that defense at law. Thereupon Carter filed this bill, setting up in detail the facts, the substance of which is before given, and alleging also that West’s claim to the money was false and fraudulent; the decision of the proper authorities at the race •that West had won no money; that there was no other consideration for the judgment, and that it was void under section 131, chapter 38, of the Revised Statutes, and that the bill is filed in pursuance of the provisions of section 135 of that chapter; prayer that West be compelled to cancel the appeal bond; that the judgment be declared void, and that West be enjoined from taking judgment, etc., on the bond. A demurrer to the bill was overruled, and West answered, by which he denies that the contract upon which said justice’s judgment was rendered was a gambling contract; admits the facts, as stated in the bill, with reference to the contract upon which the judgment was founded, except that the $15 paid by the parties entering was the entrance fee, and said fee so paid was for the privilege of entering said horses at said trotting meeting, and in said trotting meeting no other horses were permitted to enter but horses known as “gentlemen’s roadsters” of Cook county, Illinois; that West entered and paid his entrance fee, and won the first money fairly, and it is immaterial what the association decided as to whether West’s horse won or not, the judgment is conclusive; denies that said justice’s judgment is void under the statute; denies that Carter is entitled to any relief, and prays the same advantage of this answer as if he had demurred. A decree was rendered, finding that the cause of action upon which the justice’s judgment was rendered was a gaming contract, the judgment declared invalid, the appeal bond void, and perpetually enjoining West from prosecuting suit thereon. On appeal to the Appellate Court but two of the judges of that court were competent to sit in its determination, and they dividing, the decree was affirmed. West prosecutes this appeal.
    Messrs. Jones & Lusk, for the appellant:
    The statute contemplates the giving of • a judgment voluntarily. Wilkerson v. Whitney, 7 Mo. 295 ; Mallett v. Butcher, 41 Ill. 382.
    The complainant has no interest in this judgment, and can not maintain the bill. Criminal Code, sec. 135.
    We say the judgment was not based upon a gambling transaction. The only question to settle is, was the money claimed in the judgment, won by a wager or bet. We respectfully call the attention of the court to the following authorities: Wilson v. Conlin, 3 Bradw. 517; Alvord v. Smith, 63 Ind. 58; Mullen v. Driving Park, 64 id. 202.
    Messrs. Dow & Burnham, for the appellee:
    The statute is not limited to judgments by confession, but applies to all judgments on gambling contracts. Mallett v. Butcher, 41 Ill. 382; Lucas v. Nichols, 66 id. 41.
    The case of Wilkerson v. Whitney, 1 Mo. 295, is no authority for this ease, because, at the time of its decision, not only had the clause of the statute giving courts of equity jurisdiction in such cases been repealed,—thus, by implication, limiting parties to strict legal defenses,—but, by express provision of the statutes then in force, chancery jurisdiction in Missouri was limited to cases wherein parties had not adequate relief at law. Bev. Stat. Mo. 1835, p. 506.
    The Gaming act in the Bevised Statutes of Missouri of 1825 is precisely the same as ours. It makes no difference that the bill is not filed by the defendant in the judgment. The statute says, any person interested. Is not one who may be compelled to pay the judgment, interested ?
   Mr. Chief Justice Shore

delivered the opinion of the Court:

July 12,1884, appellant, West, recovered a judgment before a justice of the peace of Cook county, against the Chicago Driving Park Association, a corporation organized under the laws of this State, from which the association appealed to the circuit court of that county, filing appeal bond in compliance with the statute, with appellee as security thereon, properly approved. On the 15th day of June, 1885, the appeal was dismissed by the circuit court for want of prosecution. Suit having been brought upon the appeal bond, appellee alone filed this bill, under, as it is alleged, section 135 of the Criminal Code, seeking to have said judgment declared void, and to perpetually enjoin further proceedings to enforce liability upon said appeal bond, upon the ground that the cause of action for which the judgment appealed from was recovered was a gambling contract.

We should perhaps notice the contention of counsel for appellant, that sections 131 and 135 of the Criminal Code can have no application to judgments unless rendered by confession,—that is, these sections of the statute, in their applications to judgments, affect only such as result directly from the voluntary act of the defendant, and not “adversary” judgments. We are not prepared to so restrict the operation of this statute. By section 131, “all promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, given, granted, drawn or entered into, or executed by any person whatsoever, where the whole or any part of the consideration thereof shall be for any money, property or other valuable thing won by any gaming, * * * or by wager or bet upon any race,” etc., are made, not only voidable, but absolutely “void and of no effect.’’' Being void, it is not in the power of the party to whom made, granted, given or executed, or in whose interest they are drawn or entered into, to give the contract validity. Nor can the court, at the instance of such party, any more than it could, by the confession or consent of the defendant, vitalize the contract, and by its judgment defeat the effectiveness of the proceeding in equity authorized by the 135th section of the statute to set aside the void contract. So it has been held that a draft given in payment of a gambling debt is void in the hands of a bona fide holder. (Chapin v. Dake, 57 Ill. 295.) And where a judgment had been obtained at law upon a promissory note given for money won at gaming, it was held, upon bill filed by the maker under section 135 of the act, that the judgment was void, and it was accordingly set aside. (Mallett v. Butcher et al. 41 Ill. 382.) It was there said: “It was the intention of the legislature to make all judgments, like the contracts on which they are founded, absolutely void,—of no vitality,—and they can nbt be vitalized by the action of any court.” This being so, it can make no difference that a defense was or might have been made in the suit at law to recover judgment upon the illegal contract. The rule in equity, that courts of chancery will not take jurisdiction where there is an adequate defense or remedy at law, must yield to the requirements of this statute, that relief may be granted in a court of equity to vacate and set aside judgments and contracts obtained in violation of this provision; and it was so held in the case last cited, overruling Abrams et al. v. Camp, 3 Scam. 290.

It would perhaps be difficult, upon this record, to determine, as a question of fact, whether the money claimed by West (plaintiff in the common law suit) was won upon a wager or bet, or whether the transaction was gambling, within the meaning of this statute, nor, in the view we entertain, will it be necessary to a decision of the cause. Agricultural societies, stock and other associations organized for the purpose, and having for their object, among others,, the improvement of domestic animals, and to induce competition and rivalry in their importation and" development, may offer premiums or purses to exhibitors of such animals, without being guilty of violating the Criminal Code. On the other hand, the law will not tolerate any shift or device upon the part of any association or individual, whereby, under the pretense of bettering the-condition or developing and improving the stock, gambling is intended or permitted. But, as already said, a determination of that question here is unnecessary, for if it be conceded that the contract upon which the judgment at law was based was void, because a gambling contract, this bill can not be maintained.

Section 135 of the Criminal Code is as follows: “All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements, and other acts and deeds,, securities and conveyances, given, granted, drawn or executed contrary to the provisions of this chapter, may be set aside and vacated by any court of equity, upon bill filed for that purpose by the person so granting, giving, entering into or executing the same, or by his executors .or administrators, or by any creditor, heir, devisee, purchaser, or other person interested therein; or, if a judgment, the same may be set aside,, on motion of any person aforesaid, on due notice given.”

It is not contended that the complainant in this bill (appellee here) "falls within either class of persons designated who may file a bill under this statute, unless it be the latter—“or other person interested therein.” It is not alleged in the bill, or shown, that appellee is an officer, stockholder or creditor of the driving park association, (defendant in the common law judgment,) or in any way interested in the driving park or its estate, assets or funds, or in the judgment rendered against it. The collection of the judgment in favor of West, against the driving park association, would in no way affect appellee, or any estate or fund to which he had any right or in which he had any interest, until he voluntarily became security upon the appeal bond entered into by the driving park association to enable it to re-try its cause in the circuit court, as it might do under the statute. In no sense can appellee be said to be a person “interested, ” either in the original contract or in the judgment rendered thereon by the justice of the peace, within the contemplation of the section of the statute quoted. In respect of this judgment he was a mere volunteer, who, at the instance of the defendant, voluntarily obligated himself to pay the judgment rendered against his principal by said justice, and all costs occasioned by the appeal, in case the appeal was dismissed in the circuit court, as we have seen was done. • It can not affect the standing of appellee, or discharge his obligation, that his principal might, either at law or in equity, have avoided the judgment. It is sufficient to say that the principal has not sought to do so, either upon motion or by bill, and the appeal having been dismissed, appellee’s liability upon his bond became fixed, upon non-payment of judgment and costs by his principal, against which liability a court of equity is not authorized, either by this statute or by its general powers, to relieve him.

We are of opinion that the Superior Court erred in decreeing relief to appellee upon his bill, and that the.Appellate Court erred in affirming the same. The judgment of the Appellate Court and decree of the Superior Court are reversed, and the cause remanded to the Superior Court, with instructions to enter a decree dismissing the bill.

Judgment reversed.


author: Mr. Justice Bailey

text:
    The Lake Erie and Western Railroad Company v. Philip H. Faught.

      Filed at Springfield June 10, 1889.

    1. Appeals—as to the amount involved. In actions ex contractu, when 'the judgment is in favor of the plaintiff, and he assigns no error, and .no counter-claim has been set up by the defendant by way of set-off, the amount of the judgment must be accepted as conclusive of the amount involved in the case. The plaintiff must be deemed to have .abandoned all claim to a larger recovery. The amount of the judgment is all that is involved in such case.
    2. Where the judgment is against the plaintiff, or, if in his favor, for .asmaller sum than he claims, and he appeals, then the amount involved must be determined from the evidence. It will be such sum, not exceeding the ad damnum in the declaration, as the evidence fairly tends 'to prove.
    3. Where the defendant not only contests the plaintiff’s cause of action, but pleads and gives evidence tending to prove a set-off, and the .jury disallow the set-off and give their verdict for the plaintiff, then if the plaintiff’s recovery, added to the amount of the set-off claimed, exceeds $1000, it may be held that more than $1000 is involved, within the meaning of the statute.
    Appeal from the Appellate Court for the Third District;—. Beard in that court on appeal from the Circuit Court of McLean .county; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Stevens & Horton, and Mr. James S. Ewing, for the appellant:
    This is an action ex contractu, in which the damages claimed :are susceptible of positive proof, and in which the amount involved and claimed, exclusive of costs, exe'eeds $1000. The amount in controversy being in excess of $1000, exclusive of ■costs, the right to an appeal is allowed by section 91, chapter 110, and by section 8, page 156, of the laws of 1887. Brant w. Gallup, 111 Ill. 487; Capen v. Glass Co. 105 id. 185; Um

      lauf v. Umlauf, 103 id. 651; Keiser v. Cox, 116 id. 26; Bradshaw v. Oil Co. 114 id. 172.
    Messrs. Neville & Lindley, for the appellee:
    The fact that the declaration laid the damages in excess of $1000 can not be taken as any evidence of the amount in controversy. Lewis v. Shear, 93 Ill. 121; Hancock v. Tower, id. 150; McGuirk v. Burry, id. 118; Morris v. Presion, id. 215.
    A defendant can not be heard to assign as error that' the judgment or the amount of damages assessed against him is-too small. Reid v. Houston, 20 Bradw. 48; Lury v. Bundy. 9 N. H. 298; Wolf v. Insurance Co. 43 Barb. 400.
    The 90th section of the Practice act, and the 8';h section of the Appellate Court act, were passed on the same day, and. went into effect at the same time, and must be construed in. pari materia, and given the same effect as if both were contained in the same act. Baber v. Railroad Co. 93 Ill. 343 Umlauf v. Umlauf, 108 id. 651.
    We say that the verdict of the jury and the judgment of the circuit court being for less than $1000, appellant can not. now be heard to complain that the verdict was too small, ami thereby obtain an appeal. Reid v. Houston, 20 Bradw. 45 Lury v. Bundy, 9 N. H. 298; Wolf v. Insurance Co. 43 Barb. 400.
   Mr. Justice Bailey

delivered the opinion of the Court;

In this case, the appellee moves to dismiss the appeal, on the ground that the amount involved, exclusive of costs, is less than $1000, and that there is no certificate of a majority of the judges of the Appellate Court that the case involves questions of law of such importance, either on account of principal or collateral interests that it should be passed upon by this-court. The action is assumpsit, and is brought by Phillip H. Faught against the Lake Brie and Western Eailroad Company,, to recover for work, labor and services done and performed by the plaintiff for the defendant, and at its request. The declaration consists of the common indebitatus assumpsit counts, the damages laid in the declaration being $3000. The defendant pleaded non assumpsit, and on the trial the plaintiff gave evidence tending to show that the value of the services sued for was in excess of $1000. The jury by their verdict assessed his damages at $930, and for that sum and costs the court gave judgment in his favor.

The defendant appealed to the Appellate Court where said judgment was affirmed. It thereupon presented its petition to one of the judges of that court, in vacation, representing that the cause involved the sum of $3000, for the reason that the plaintiff, in his declaration, claimed that sum, and praying that an appeal to this court be allowed and the amount of the appeal bond fixed. No representation was made in the petition that any question of law was involved in the ease of such importance that the case should be passed upon by this court. On that petition an order was made by said judge allowing an appeal and fixing the conditions upon which the same might be taken, but no certificate was made as to the importance of any of the questions of law involved in the case.

The appellee’s motion raises the question whether the case involves less than $1000, exclusive of costs, within the meaning of the statute allowing appeals from the Appellate Court to this court. The judgment is for $930 and costs, and with that judgment the plaintiff is content. Whatever may have been the amount of the indebtedness claimed in his declaration or shown by the evidence, the amount recovered is all that is now in controversy. The plaintiff having neither appealed or assigned errors, he must be deemed to have accepted the judgment as a conclusive and final ascertainment of the amount of his claim, and to have abandoned all of it in excess of his recovery; and the controversy, so far as it can be made by appeal, is conclusively narrowed down to the plaintiff’s right to recover the $930 and costs.

We are of the opinion that, in eases ex contractu, where the judgment is in favor of the plaintiff, and he assigns no error, and no counter-claim has been set up by the defendant by way of set-off, the amount of the judgment must be accepted as conclusive of the amount involved in the case. There the plaintiff must be deemed to have abandoned all claim to a larger recovery, and thus eliminated from the case all of his claim in excess of the amount recovered, as effectually as though he had entered a remittitur of such excess before the trial; and the defendant can not insist that a larger sum than that recovered is involved, since his doing so would be tantamount to assigning for error that the judgment against himself is for too small an amount.

Where the judgment is against the plaintiff, or if in his favor, for a sum smaller than he claims, and he appeals, then undoubtedly, the amount involved must be determined from the evidence. It will be such sum, not exceeding the ad damnum in the declaration, as the evidence fairly tends to prove. The cases of Brant v. Gallup, 111 Ill. 487, and Hankins v. Chicago and Northwestern Railway Co. 100 id. 466, are illustrative of this rule.

So where the defendant not only contests the plaintiff’s cause of action, but pleads and gives evidence tending to prove a set-off, and the jury disallow the set-off and give their verdict for the plaintiff, there, if the plaintiff’s recovery, added to the amount of the set-off claimed, exceeds $1000, it may be held that more than $1000 is involved within the meaning of the statute. The following are eases of this character: Capen v. De Steiger Glass Co. 105 Ill. 185; Moshier v. Shear, 100 id. 469.

No question of the character above indicated exists in this case. The suit is brought to recover the value of certain work done by the plaintiff, as he claims, for the defendant, in the grading of its railroad, the defense being, that said work was done by the plaintiff, not for the defendant or at its request, but as a sub-contractor of J. M. Wright & Co., the contractors to whom the defendant had let the entire work of grading that portion of its railroad upon which the work sued for was done. The only evidence affecting the question of the amount involved in the suit is that by which the plaintiff sought to prove the value of said work; and as he is content with the amount of his recovery, the judgment must be accepted as the true measure of the amount involved. That, exclusive of costs, being less than $1000, no appeal lies from the Appellate Court to this court. See Martin v. Stubbings, 126 Ill. 387. It follows that the appeal was improperly taken, and that the appellee’s motion to dismiss must be sustained. The appeal will be dismissed at the appellant’s costs.

Appeal dismissed.


author: Mr. Justice Craig

text:
    John V. Farwell et al. v. Gerhard Becker et al.

      Filed at Ottawa June 15, 1889.
    1. Appeal—as to the amount involved—decree against two severally— against one for over $1000, and against the other for a sum less than $1000. On bill against two defendants for contribution, the trial court found both defendants liable, one in a sum exceeding $1000, the other in a sum less than $1000. On appeal the Appellate Court reversed the decree as to both defendants, and the complainant appealed from that judgment to this court: Held, that this court had no jurisdiction of the appeal as to the defendant who was decreed to pay less than $1000.
    2. Where the amount of a decree against" each of two defendants is separate and distinct, the one not being liable for the amount the other is required to pay, the two amounts can not be united so as to confer jurisdiction on this court of an appeal from the Appellate Court, but each must be treated as a separate suit.
    3. Contmbtjtion'—among wrongdoers or trespassers. The rule that there can be no contribution among wrongdoers or trespassers, applies only to cases where there has been an intentional violation of the law, or where the wrongdoer is presumed to have known that the act was unlawful.

      4. Same—as between several attaching creditors. Where several attaching creditors, at the time of suing out their writs, act in good faith, exercising such prudence and caution as an ordinarily prudent person would, with no intention of committing a trespass or injuring any one, but with the honest belief that a transfer of goods made by their debtor is fraudulent as to creditors, the right of contribution will exist as between the attaching creditors, although it may turn out that the seizure of the goods was unlawful, and each will be compelled to pay his just proportion of a recovery to one of them who pays the judgment and costs.
    5. Same—payment by one of several—should hold the title to the judgment—if assigned—in order to compel contribution. Where_a defendant in a judgment against several, on payment of the same, takes an assignment of the judgment to his attorney for the p impose of keeping it alive against his co-defendants, the court, in decreeing contribution, should require the complainant to procure an assignment of the judgment from his attorney, and file the same with the decree, as a condition precedent to the issuing of an execution on the decree.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Cyrus Epler, Judge, presiding.
    This was a. bill in equity, brought by John V. Farwell and others, in the firm name of John V. Farwell & Co., against Gerhard Becker and Elbert W. Shirk, to compel contribution in respect to certain judgments rendered in the State of Iowa.
    The facts disclosed by the record, so far as they are material, are briefly as follows: For some time prior to December 19, 1881, the firm of Olquist Bros, was carrying on the mercantile business at Monticello, Jones county, Iowa, and at Center, Point, Linn county, Iowa, they having a stock of goods at each place. On the day above mentioned, they were indebted to various parties for merchandise, viz., $5984.23 to complainants, $2076.14 to Gerhard Becker, $234.10 to Sherer, Shirk & Co., $728 to H. L. Bisen & Co., and $1184.50 to O. R. Keith & Co. A few days prior to the date above named, Olquist Bros, sold and delivered their stock of goods at Monticello to one N. A. Sunberg, and also their stock of goods at Center Point to said Sunberg and one F. B. Olquist, the latter-being a brother of the members of said firm, but not connected "with them in the business. The evidence tends to show that the former of these sales was by way of payment and satisfaction of a chattel mortgage on said stock of goods, previously • executed by Olquist Bros, to Sunberg. On said 19th day of December, 1881, said creditors commenced suits by attachment, in the district court of Jones county, Iowa, against Olquist Bros.,-for the recovery of their respective debts, and •caused writs of attachment to be issued to the sheriffs of both •of said counties. Said writs were levied upon both of said -•stocks of goods, the stock of goods in Jones county being at the time in the actual and visible possession of Sunberg, and the one in Linn county in that of Sunberg and Olquist, the ■purchasers from Olquist Bros. Said levies were made in the following order of priority: In Jones county, first, the complainants ; second, Sherer, Shirk & Co.; third, H. L. Eisen & Co.; fourth, O. B. Keith & Co.; and fifth, defendant Becker; /and in Linn county, first, the complainants; sécond, defendant Becker; third, Sherer, Shirk & Co.; fourth, H. L. Eisen • & Co.; and fifth, 0. B. Keith & Co. By the laws of Iowa, attachment creditors take priority in the order in which their writs of attachment are served. The suit in favor of the •complainants, and the one in favor of defendant Becker, were commenced and prosecuted to their final termination by the •same attorneys. The several attachment suits were prosecuted to judgment, and the court having appointed a receiver to take •charge of and sell the goods attached, the goods in Jones county were sold, and the sum of $4380.14 realized therefrom, ■which sum was all paid over to the complainants in part sat'isfaction of their claim. The goods in Linn county were also sold, and the proceeds were applied, first, to the satisfaction of the residue of the complainants’ claim, after which the claim •of Becker was paid in full; then that of Sherer, Shirk & Co., leaving $55.55, which was applied upon the claim of H. L. Eisen & Có. The residue of that claim, as well as the entire-claim of 0. B. Keith & Co., remained unsatisfied.
    On the 27th day of December, 1881, Sunberg, claiming tube the owner of the stock of goods attached in Jones county, commenced his action in the district court of that county,, against the sheriff, to recover damages for the wrongful seizure of said goods. At about the same time, a similar actiom was commenced by Sunberg and F. B. Olquist, against the-sheriff of Linn county, in the district court of that county. Afterward, in pursuance of the provisions of a certain statute of Iowa, the complainants were substituted as defendants, im place of the sheriff, in the action pending in Jones county,, and in the action pending in Linn county, the complainants, defendant Becker, and Sherer, Shirk & Co., were substituted as defendants, in place of the sheriff of that county. Such, substitution having been made, both suits were removed to the Circuit Court of the United States. A motion in that court-to remand said causes to the State courts was granted, but on petition for a rehearing the order remanding said causes was. vacated and the consideration of the motion postponed, to-await the decision of an appeal to the Supreme Court of Iowa, from the order of the district court making a substitution of" defendants. An appeal was prosecuted by Sunberg in the Jones county case, and upon such appeal the Supreme Court, decided that the statute under which the substitution was made was unconstitutional, and reversed the order discharging: the sheriff and substituting the complainants as defendants in his stead. Both of said causes were thereupon remanded to-the State courts. Notwithstanding such decision, the parties substituted as defendants voluntarily elected to continue as-such, and the Jones county suit was thereafter prosecuted, against the complainants and the sheriff jointly, and the Linncounty case against the complainants,—defendant Becker and. the sheriff of that county not being restored as defendants^ Shortly after the causes were remanded, a stipulation entitled! in both suits, and signed by attorneys representing all the parties plaintiff and defendant therein, was filed in the suit in Jones county, which, among other things, provided that if judgment should be rendered for the plaintiff on a trial in Jones county, a judgment should also be rendered in favor of plaintiff in Linn county. A trial was afterwards had in the-Jones county case, before the court and a jury, resulting in a-verdict in favor of plaintiff, for $8015. On appeal to the Supreme Court of Iowa, the judgment was affirmed. The stipulation was thereupon filed in Linn county, and, in pursuance-of its terms, a judgment was entered in the cause pending in. that county, in favor of plaintiff, for $7541.18.
    The evidence shows that the defendant Becker was fully informed, from time to time, by the attorneys defending said suits, of the pendency of the suits, and of the various proceedings therein, and that no objection was made by him to any of said proceedings. It also appears that he contributed, from time to time, various sums of money to defray the expenses of both suits in the district courts, as well as of the appeal from the judgment rendered in Jones county to the Supreme Court of Iowa. After the last mentioned judgment had been affirmed by the Supreme Court, and a few days before the entry of the-judgment in Linn county, one of the attorneys for the plaintiffs in said suits called on the complainants in Chicago, and demanded of them immediate payment of both the Jones-county judgment and the claim upon which they were entitled,, by stipulation, to judgment in the Linn county suit, threatening, if such payment was not instantly made, to proceed, without any delay, in the matter of both judgments, by way of levying on the complainants’ property and garnishing their debtors in Iowa. The complainants, after endeavoring in vain to obtain sufficient delay to enable them to obtain contribution from their co-defendants, gave to said attorney their checks for the full amount of both judgments. At the same time, a computation of the amount of the Linn county judgment, as the same was to be entered ■ by stipulation, having been made, a further stipulation was drawn up and signed by said attorney, and one of the attorneys for the defendants in said suits who was also present, to the effect that judgment should be entered in Linn county for said sum of $7341.18. The complainants also at the same time gave to said attorney, for the defendants, their check for the residue of attorneys’ fees .and other expenses in the matter of said suits, the total sum so paid by the complainants in the matter of said judgments, •costs, fees and expenses being $18,736.99. The complainants, however, instead of having said judgments satisfied and discharged of record, procured an assignment thereof to H. S. Parkhurst, one of their attorneys, for the avowed purpose of Peeping them alive, in order to enforce contribution from their •co-defendants. Said judgments, so far as appears, are still held by said Parkhurst under said assignment.
    The circuit court found that defendants Becker and Shirk, ike latter being a member of the firm of Sherer, Shirk & Co., were each liable to contribute in respect to the full amount of said judgment and expenses, such contribution to be made in proportion to the respective amounts collected by the complainants, said Becker and the firm of Sherer, Shirk & Co., by means of said attachment suits. It was accordingly decreed that said Becker should pay to the complainants the sum of .$,■>047.75, and said Shirk the sum of $554.75.
    Messrs. Tenney, Bashford & Tenney, for the appellants:
    A court of equity has jurisdiction to enforce contribution. 1 Story’s Eq. Jur. secs. 492, 496; Conover v. Hill, 76 Ill. 342; Johnson v. Vaughn, 65 id. 425; Wincock v. Turpin, 96 id. 135 ; Buchanan v. Meisser, 105 id. 638 ; Pixley v. Gould, 13 Bradw. 565; Cary v. Holmes, 16 Gray, 127; Whitman v. Porter, 107 Mass. 522; Nickerson v. Wheeler, 108 id. 295; Whitcombs. Converse, 119 id. 38.

      The rule that contribution will not be enforced between trespassers or wrongdoers, is confined to cases where the person seeking redress must be presumed to have known that the act for which he has been mulcted in damages was unlawful. Cooley on Torts, 147; Jacobs v. Pollard, 10 Cush. 287; Stanton v. McMullen, 7 Bradw. 326; Humphreys v. Pratt, 5 Bligh, 154; Coventry v. Barton, 17 Johns. 142; Leggett v. Du Bois, 5 Paige’s Ch. 468; Harbach v. Elder, 18 Pa. St. 33; Moore v. Appleton, 26 Ala. 633; Dugdale v. Lovering, 12 Moak’s Eng. Rep. 316, note; Bully v. Batty, 12 E. C. L. 649; 1 Parsons on Contracts, 37; 1 Hilliard on Torts, 188, note a; 1 Waterman on Trespass, secs. 29, 31.
    The decree from which this appeal is prosecuted is not the decree of the circuit court, but that of the Appellate Court, which reverses with direction to dismiss as to both defendants. It is not in favor of Shirk severally, but in favor of him and Becker. One entire decree was rendered disposing of the whole controversy in favor of appellees jointly, and this appeal is from this decree,—not from a part of it.
    Each of the defendants was a necessary party to the hill, and each was interested in the amount the other was to pay, as it affected the amount of his own contribution. Separate bills could not have been maintained.
    This court has jurisdiction because the aggregate amount involved in the suit, and in which both defendants have a common interest, exceeds $1000. The Connemara, 103 U. S. 754; The Mamie, 105 id. 773 ; Shields v. Thomas, 17 How. 3.
    Messrs. Beck & Charlton, and Mr. John Gibbons, for the appellee Becker:
    If a plaintiff recovers in tort against two defendants, and levies the whole damages on one, that one can not recover a moiety against the other. Merryweather v. Nixon, 8 D. & E. 186 ; Nelson v. Cook, 17 Ill. 443; Nichols v. Nowling, 82 Ind. 483; Miniers v. Johnson, 1 Duv. 171; Peck v. Ellis, 2 Johns. Ch. 131; Acheson v. Miller, 18 Ohio, 1; Anderson v. Saylors, 3 Head, 551; Rhea v. White, id. 120; Baird v. Steel Works, 12 Phil. 255; Hen v. Barber, 2 Mack. 545; Cooley on Torts, 149, 150.
    Mr. Frederick TJllman, for the appellee Shirk:
    The amount involved being less than $1000, this court has no jurisdiction. Paving Co. v. Mulford, 100 U. S. 147; Rich v. Lambert, 12 How. 347; Seaver v. Bigelow, 5 Wall. 208; Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 id. 41; Spear v. Place, 11 How. 525.
   Mr. Justice Craig

delivered the opinion of the Court:

The appellee Elbert W. Shirk has entered a motion to dismiss the appeal, so far as he is concerned, on the ground that the amount involved is less than $1000 and the judgment of the Appellate Court is final.

The bill in this case was brought against two defendants— Becker and Shirk. The facts set out in the bill, briefly stated, are, that Farwell & Co., Becker, Shirk’s firm (Sherer, Shirk & Co.) and Eisen & Co. were creditors of Olquist Bros., a firm doing business at Montieello .and Center Point, Iowa. The firm became insolvent, and made transfers of their stock, which the creditors claimed were fraudulent, and thereupon brought attachment suits through the same attorneys. The goods were sold under the attachment proceedings, and enough was realized to pay the claims of Farwell, Becker and Shirk in full. Trespass suits were brought by the parties who purchased the goods from Olquist Bros., against the sheriffs who made the levies, for the value of the goods, and, after considerable litigation in Iowa, judgments were recovered by the plaintiffs in both of the suits, which judgments were paid by Farwell & Co. They also paid the costs and expenses of defending the suits, and brought this bill to compel Becker and Shirk to contribute pro rata to the payment of the amount they had paid out. The circuit court entered a money decree, requiring Becker to pay complainants $5047.75, and requiring Shirk to pay $554.74. To reverse the decree, each defendant took a separate appeal to the Appellate Court. The Appellate Court reversed the decree as to both defendants, and remanded the cause, with directions to dismiss the bill. To reverse that judgment, complainants appeal to this court.

We think it is plain that this court has no jurisdiction so far as the defendant Shirk is concerned. Although two parties (^Becker and Shirk) were made defendants to the bill, the action is against each defendant to enforce a separate and distinct liability. The claim relied upon was separate as to each defendant, and so was the recovery. Shirk was in no manner connected with Becker as to the claim against him, nor was Becker in any manner liable as respects the claim against Shirk. Where the amount against each defendant is separate and distinct, as is the ease here, the two amounts can not be united so as to confer jurisdiction, but each must be treated as a separate suit; and if the amount involved as to either one is not large enough to confer jurisdiction, the appeal must fall. See Paving Co. v. Milford, 100 U. S. 147.

The appeal, as to appellee Shirk, will be dismissed.

Several questions have been discussed by counsel, in the argument, but there is but one question of any importance presented by the record, and that is, whether complainants in the original bill (appellants here) have the right to require Gerhard Becker to contribute to the payment of the judgments rendered in the district courts of Jones and Linn counties, Iowa, and costs, which the qomplainants had paid, in consequence of the levy on the goods as the property of Olquist Bros.

It is insisted by appellee, that in the attachment and sale of the goods in Iowa, the complainants, and Gerhard Becker, the defendant, were all wrongdoers, and that no right of contribution exists between wrongdoers. There are cases which hold that no right of contribution exists between wrongdoers. Merryweather v. Nixon, 8 Durn. & East, 186, may be regarded as a leading case on the subject. Nicholas v. Newling, 82 Ind. 448, Peck v. Ellis, 2 Johns; Ch. 131, Cranston v. Limbet, 18 Ohio, 81, and Spalding v. Oakes, 42 Vt. 343, hold the same doctrine. There are other cases where the same rule has been declared, but we do not think the weight of authority sustains the doctrine that no right of contribution exists between wrongdoers as it is broadly stated in Merryweather v. Nixon. Indeed, the later English cases do not, in our opinion, sustain the doctrine as it is laid down in that ease. The question arose in Adamson v. Bidgood, 4 Bing. 66, and in passing upon the question, among other things, Beet, C. J., said: “It was certainly decided in Merryweather v. Nixon that one wrongdoer could not sue another for contribution. Lord Kenyon, however, said that the decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right. This is the only decided case on the subject that is intelligible. The case of Phillips v. Biggs, Hasdr. 164, was never decided, but the court of chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors. From the inclination of the court in the last case, and from the concluding part of Lord Kenyon’s judgment in Merryweather v. Nixon, and from reason, justice and sound policy, the rule that wrongdoers can not have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.” What was said in the case cited was approved in a later case—Betts v. Gibbons, 2 Ad. & Ell. 57. See, also, Nooley v. Batte, 2 Car. & Payne, 417.

Story on Partnership, (sec. 220,) after stating what is regarded as the general rule,—that no right of contribution is allowed, by the common law, between joint wrongdoers,—says: “But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known, meditated, wrong, and not where the party is acting under the supposition, of the entire innocence and propriety of the act, and the tort is merely one of construction or inference of law.”

Armstrong Co. v. Clemen Co. 66 Pa. St. 218, sanctions the rule announced in Story, and after reviewing the authorities on the question, holds that where the tort is a known, meditated wrong, contribution can not be had, but where the party is acting under the supposition of the entire innocence and propriety of the act, contribution may be awarded.

In Bailey v. Busing, 28 Conn. 455,—a leading case on the subject,—it was held: “The rule that there can be no contribution among wrongdoers has so many exceptions that it can hardly, with propriety, be called a general rule. It applies properly only to eases where there has been an intentional violation of the law, or where the wrongdoer is presumed to have known that the act was unlawful.”

In Jacobs v. Pollard, 10 Cush. 287, the Supreme Court of Massachusetts state the law as follows: “No one can be permitted to relieve himself from the consequences of having intentionally committed an unlawful act, by seeking an indemnity or contribution from those with whom, or by whose authority, such unlawful act was committed. But justice and sound policy, upon which this salutary rule is founded, alike require that it should not be extended to cases where parties have acted in good faith, without any unlawful design, or for the purpose of asserting a right in themselves or others, although they may have thereby infringed upon the legal rights of third persons. It "is only where a person knows, or must be presumed to know, that his acts were unlawful, that the law will refuse to aid him in seeking an indemnity or contribution. It is the unlawful intention to violate another’s rights, or a willful ignorance and disregard of those rights, which deprives a party of his legal remedy in such cases.”

Acheson v. Miller, 2 Ohio St. 203, is a case in its facts quite ■similar to the present case. In the discussion on the right of ■contribution, the Supreme Court of Ohio said: “The rule that no contribution lies between trespassers, we apprehend is one not of universal application. We suppose it only applies to ■cases where the persons have engaged together in doing, wantonly or knowingly, a wrong. The case may happen that persons may join in performing an act which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party, who may have a right to an ■action of tort against them. In such case, if one of the parties who has done the act has been compelled-to pay the amount of the damages, is it not reasonable that those who were engaged with him in doing the injury should pay their proportion?” After reviewing the authorities, the court holds that the legal rule is, that when parties think they are doing a legal and proper act, contribution will be had, but when the parties are conscious of doing a wrong, courts will not interfere. See, also, Coventry v. Barton, 17 Johns. 141.

Under the authorities, we think it is clear that if the attaching creditors, at the time they sued out their attachments and ■seized the goods, acted in good faith, exercising such prudence and caution as an ordinarily prudent person would exercise, with no intention of committing a trespass or injuring any one, but with the honest belief that the transfers made by Olquist Bros, were fraudulent as to creditors, the right of contribution exists, although it ultimately turned out that the seizure of the goods was unlawful and unwarranted. The facts ■surrounding the transaction at the time the levy was made, were such, in our opinion, as to lead any prudent person to believe that the goods were liable to be attached by creditors, as was done. Olquist Bros, were, at the time of the pretended sale, largely indebted to various parties. A day or two before the attachments issued, they claimed to have sold the Monti■cello store to N. A. Sunberg, and the other stock to N. A. Sun-berg, and F. B. Olquist, another brother. No effort was made to adjust or pay their liabilities. They retained no other property liable to levy or sale. These and other kindred facts were brought to the attention of the attaching creditors before they proceeded to seize the goods. If the sales were fraudulent, although the possession of the goods was turned over to the purchasers, the creditors had the right to levy. Were not the facts surrounding the transaction such that a reasonably prudent person might well believe that an attempt had been made to defraud creditors ? If so, it can not be said that the attaching creditors, in making the levy, intentionally violated the law. Nor were they presumed to have known that the levy was unlawful. The fact that the goods, when attached, were in the possession of Sunberg, is not a controlling fact. The ■surrounding circumstances indicated that the pretended sale was fraudulent, and if fraudulent, as it appeared to be, the •creditors had a right to attach the goods, although in possession of a pretended purchaser, and a seizure, under such circumstances, can not be regarded as tortious.

As to the equities of the case, they are with the complainants. The defendant, as well as complainants, sued out attachments, which were levied on the goods. .He assisted in defending the actions brought by the claimant of the goods. His debt was fully paid from money arising out of a sale of the goods under the attachment, and as the complainants have been compelled to refund the value of the goods, equity and fair dealing unite in requiring the defendant to contribute his just proportion of the burden which has been cast upon the complainants on account of the seizure and sale of the goods. We think the decree of the circuit court holding Becker liable to contribute was correct.

One other fact remains to be noticed. It appears from the evidence, that the complainants, when they paid the two judgments rendered against them for taking the goods, did not have the judgments receipted and cancelled, but they were assigned to Parkhurst, who was an attorney of complainants^ The decree treats the judgments as belonging to complainants, which is the fact; but as they were assigned to Parkhurst, we-think the decree should be modified, requiring complainants to procure an assignment of the judgments from Parkhurst, and file the same with the decree, as a condition precedent to the issuing of an execution to collect the amount found due by the decree. In this respect the decree of the circuit court will be-modified. In all other respects it will he affirmed.

The judgment of the Appellate Court, as to defendant Becker, will he reversed.

Judgment reversed.

Mr. Justice Bailey, having heard this case in the Appellate; Court, took no part in its decision here.