St. Clair County IL Archives Court.....Gargnier, Moise Toupin V Olivier 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:52 am

Source: Reports Of Cases
Written: 1850

Moise Toupin and others, appellants, v. Olivier Gargnier, appellee.

Appeal from St. Clair.

Where the parties to a suit agree to dismiss the same, in the absence of all 
reasonable doubt as to the making of the agreement, the court should carry the 
agreement into effect, whether it be reduced to writing and signed by the 
parties, or exists in parol.(a)

This was an action of trespass, vi et armis, brought in the St. Clair Circuit 
Court by the appellee, which was tried by a jury, Underwood, Judge, presiding, 
at the September term, 1850. A verdict was found for the appellee for sixty 
dollars. A motion for a new trial was entered by appellants. Before judgment, 
the appellees entered a motion to dismiss the suit, and produced and
filed two affidavits in support of the motion, showing that an agreement had 
been made between appellee and one of the appellants, that the case should be 
dismissed as to all the appellants and that each party should pay his own 
costs. This motion was resisted, upon the ground that the verdict had been 
assigned by the appellee, and affidavits were produced and filed with the 
assignment of the verdict, showing the date of the transaction. The motion to 
dismiss was overruled, and judgment was rendered upon the verdict. Thereupon 
the defendants below instituted this appeal.

G. Koerner, for appellants.

J. Underwood, for appellee.

Treat, C. J. In our opinion the court erred in not sustaining the motion to 
dismiss. It, clearly appeared that the parties had agreed, while the case was 
pending and undetermined, and before the assignment to Underwood and Snyder 
was executed, that the suit should be dismissed, each party to pay his own 
costs. Two witnesses swore positively that such an agreement was made, and 
there was nothing in the case calculated to impeach the correctness of their 
statements. The existence of the agreement was not even denied by the 
plaintiff, as it probably would have been if there had been any question 
respecting the true character of the transaction between the parties. The 
court, in the absence of all reasonable doubt as to the making of agreement, 
was as much bound to carry it into effect as if it had been reduced to writing 
and signed by the parties.

The judgment of the Circuit Court must be reversed, with costs; and the cause 
will be remanded, with instructions to that court to enter an order of 
dismissal, pursuant to the agreement of the parties.

Judgment reversed.

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(a) Approved in Coultas v. Green, 43 Ill., 277. See Henchey v. City of 
Chicago, 41 Ill., 138; Chapman v. Shattuck, 3 Gil., 49, wherein it is held 
that in such cases the court may dismiss against the objection of counsel.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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