Gallatin County IL Archives Court.....Owen vs. Bond 1819-31
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 2, 2008, 10:40 pm

Source: Reports Of Cases Illinois
Written: 1819-31


VANDALIA.

Joseph Owen and others, Plaintiffs in Error, v. Shadrach Bond, Defendant in Error.

ERROR TO GALLATIN.

The agent of the Gallatin county saline has no power to substitute another person in place of the original lessee in case of a violation of the covenants; he should enter upon the demised premises, advertise them, and lease them to the highest bidder.

In this case, the plaintiffs in error, defendants below, were sued upon a lease alleged in the declaration of defendant in error, plaintiff below, to have been made by S. Bond, as governor of the state of Illinois, on the one part, and the defendants on the other part. The defendants, except Forester and Funkhouser, plead non est factum, and the plaintiff admitted the plea to be sustained. As to Forester and Funkhouser, it was admitted by the parties that they did not sign the lease at the time of the making of the same. That after the appointment of Willis Hargrove as superintendent of the saline in the year 1821, the said Owen being likely to prove insolvent, Hargrove agreed, without the knowledge of governor Bond, that his lease should be transferred to Funkhouser and Forester, and thereupon Funkhouser and Forester signed the lease, and affixed their seals, and their names were inserted in the body of the lease; they then entered into partnership and proceeded to manufacture salt at the salt works granted to Owen, as above stated under the lease, and paid the rent for a time, until they became in arrears for six months' rent, for which the suit was brought. On this state of facts, it was agreed that the court should try the case against Funkhouser and Forester, and if it is considered by the court that they are legally bound to comply with the terms of the lease, judgment is to be rendered against them for $538.33. But if it was the opinion of the court that the conditions of the lease were not binding upon Forester and Funkhouser, a nonsuit was to be entered. It is stipulated in the lease that if the rents are not paid for the space of thirty days after the time they are payable, that the governor or his duly authorized agent, may re-enter upon the demised premises, &c.

Upon this state of facts, the circuit court gave judgment by default, against Forester alone for $583.33, and the cause is brought to this court by a writ of error.

Opinion of the Court by Justice Lockwood. The questions arising in this case are, whether the agent of the saline had the power to substitute the defendant for the original lessee? And whether, if he had such power, the judgment can be sustained under the agreement of the parties? On the first question, the court are of opinion that the superintendent had no power to make Funkhouser and Forester lessees, in the place of the original lessee. His duty required him, in case of a violation of the covenants contained in the lease, to have entered into possession of the demised premises, and then have advertised them for five weeks, and on the day fixed to have leased the premises for the residue of the term to the highest bidder. Here has been a total departure from the provisions of the law.

The court also erred in rendering judgment against Forester only. The stipulation, if it conferred any authority, gave the court power to render judgment against Funkhouser and Forester.

Judgment reversed.


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(1) Where an attorney enters an appearance of a party without authority and judgment is rendered against him, such judgment will be set aside on million. Lyon v. Boilvin, 2 Gilm., 635.

At the May Term, 1837, a judgment was rendered against Sloo & McClintock, partners, on a power of attorney executed by McClintock alone. At the next term of the court Sloo entered a motion to set aside the judgment as to him. Held by the supreme court that the motion should have been sustained. Sloo v. State Bank, 1 Scam., 429.

It was also held in Truett v. Wainwright, that a judgment rendered against a person who has not been served with process, nor authorized his appearance to be entered, may be set aside by a bill in chancery, or by a motion in the court where the judgment was rendered. 4 Gilm., 418.

After a term has expired, a court has no discretion or authority at a subsequent term to set aside a judgment, but may amend it in mere matter or form after notice has been given to the opposite party. Cook v. Wood, et al., 24 Ill. 295. This decision I apprehend does not conflict with the decision cited above. Those cases were set aside for the reason that the parties were not properly in court; while in the last case the defendants had been duly served with process, but it was vacated by the circuit court on equitable grounds, but which decision was reversed in the supreme court for the reason, among others, that the motion came too late.


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