Beardsley v. Smith

Citations

• 139 Ill. 290
• 28 N.E. 1079

Syllabus

<p>1. Practice in the Supreme Court—sufficiency of a plea of release of errors. A writ of error was sued out of this court to reverse the judgement of the Appellate Court, affirming a decree of the circuit court ordering the sale of the property of an insolvent corporation, and the division of the proceeds between certain judgment creditors and the holders of the bonds of the corporation. The defendants in error pleaded that the plaintiff in error, on, etc., at, etc., did release unto the defendants in error all errors in said case affecting him, and agreed upon a sale of the property, and a division of the proceeds thereof, regardless of any and all errors in the record : Held, the plea was bad on demurrer, as being too general, and also in failing to state whether the release was by a written instrument or a, mere verbal agreement, and in not stating with sufficient definiteness the facts relied on as a release or a consideration therefor, or any facts that would estop the plaintiff. The plea should state the facts relied on as a release.</p> <p>2. A plea of release of errors in a decree for the sale of land and the distribution of the proceeds, which sets up an agreement for the sale and division of the proceeds, is bad, if it fails to state the terms of the agreement. A mere agreement that the decree shall be executed as entered can neither add to nor detract from its force, and does not constitute a release of errors.</p> <p>3. A plea of release of errors should state whether the release was by -a written or a merely verbal agreement. If in writing, the court can determine, upon inspection, whether it is a valid release, but if the evidence rests in parol, the issues must be sent to some proper court to be tried.</p> <p>4. Such a plea should show that the release of errors was based upon a good consideration, and that there was such a change in the provisions of the decree as works an inconvenience or loss to the defendants in error, or that something has been