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early day a large practice, is easily ascertained from a cursory examination of the earlier volumes of the Reports of this court.

Ten years after the admission of GUSTAVUS KOERNER to the bar, and on April 2, 1845, he was appointed by the Governor to be a justice of the Supreme Court of the State in place of Justice Shields, who had resigned, and on December 19, 1846, he was elected by the General Assembly to fill the same office. He retired from the bench in September, 1848, upon the re-organization of the judiciary of the State under the new constitution that was adopted by the people in that year. Thus he was a justice of this court for a period of about three years and a half. His opinions are reported in the second, third and fourth volumes of Gilman's Reports. The amount of business in the court at that time was comparatively small, and the duty of holding courts upon the circuit also devolved upon the justices. The opinions that he wrote while here, indicate that he was an educated lawyer and an able and just judge. The State was then in its infancy; the courts had established but few precedents; the questions that arose were largely questions of first impression, and the labors of the justices were both difficult and responsible; and it may be said of Justice KOERNER that he well performed the work of establishing precedents for his successors.

In the course of his long and laborious life, Judge KOERNER filled with honor and credit to himself, and to the welfare of the people, several important public offices other than that of a justice of this court. He was for one term Lieutenant-Governor of the State, and for a number of years he represented the government of the United States as minister to the court of Spain.

But it was as a lawyer at the bar that the principal life-work of Judge KOERNER was done. With but a few intermissions he was engaged in the active practice of the law from 1835 until his death, in the early part of the present year,-a period of more than sixty years. As already said, he started out in his career well read in the fundamental principles of jurisprudence, and so long as he lived he continued to add to his knowledge of the law. His mind was stored with choice literature, and he had a vast fund of general information at his command. He was a safe counselor and a man of most excellent judgment. He was a kind and courteous gentleman in his intercourse with both the bench and the bar. He was thoroughly honest, conscientious and reliable, and

known to be so by the courts, by his brother lawyers, by his clients and by his fellow-citizens. He well and nobly performed all the duties that devolved upon him as a lawyer, as a judge, as a citizen and as a man, and then, having lived more than four-score years, he was gathered unto his fathers.

We deeply sympathize with his immediate family, his surviving relatives and his sorrowing friends.

The resolutions submitted will be spread upon the records of the court.








Filed at Springfield June 11, 1896.

1. JUDGMENTS AND DECREES—confession by an insolvent debtor is not fraudulent. Confession of a judgment in favor of a creditor is not in itself fraudulent, although the confessing debtor was at the time insolvent.

2. SAME-confession in vacation—stranger can attack only for fraud. A motion of judgment creditors to set aside prior judgments confessed by their debtor in vacation, in favor of another creditor, cannot be sustained except upon a showing of fraud by the debtor in making such confession.

3. SAME-confession for too large a sum-who may complain. That a judgment confessed in vacation is for too large a sum, caused by the addition of attorney's fees which the clerk, under the power of attorney to confess, had no right to fix, can be complained of, in the absence of fraud, only by the defendant in such judgment, and not by strangers.

First Nat. Bank v. Havens & Geddis Co., and First Nat. Bank v. Terre Haute Shoe Co. 61 Ill. App. 213, reversed.

*The three cases of Harens & Geddis Co. v. First Nat. Bank of Pana, Same v. Same, and Terre Haute Shoe Co. v. First Nat. Bank of Pana, were considered and decided with this case.

162 35 74a 350 74a 442

APPEAL from the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of Christian county; the Hon. JACOB FOUKE, Judge, presiding.

This is an appeal from a judgment in the Appellate Court modifying a judgment of the circuit court of Christian county. On November 14, 1834, the First National Bank of Pana recovered judgments, by confession in vacation, upon promissory notes, as follows: Three against A. C. Seitz and A. M. Craddick, as partners, composing the firm of Seitz & Craddick, respectively, the first two for $3800 each, including $208.80 attorney's fee; one for $1126.06, including $100 attorney's fee; and one against A. C. Seitz in the sum of $4915, including $200 attorney's fee. The warrant of attorney by virtue of which each of said judgments was rendered, authorized "any attorney of record to confess judgment for the amount due the holder of the note, together with costs and reasonable attorney's fees," and the sums above indicated were included in the judgments for such fees. On the 15th day of November, 1894, executions issued on these judgments were levied upon a stock of general merchandise as the property of A. C. Seitz. On November 20 following, during the November term of the Christian circuit court, four judgments were rendered in open court against said A. C. Seitz by confession,-one in favor of the Terre Haute Shoe Company, for $1070.14, and the other three in favor of the Havens & Geddis Company of Terre Haute, for $1240.01, $2715.07 and $455.61, respectively. Afterwards, and during the same term, the Havens & Geddis Company and the Terre Haute Shoe Company, respectively, filed a motion in each of said cases, asking that the judgments entered in vacation in favor of the bank be set aside and the executions issued thereon and the levies thereunder be quashed, and also that a rule be entered against the sheriff directing him to levy execu

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tions issued upon the judgments rendered in term time, in favor of the parties making the motion, upon the stock of merchandise owned by Seitz, and that the goods be sold under such levies, and that the proceeds be applied to the payment of their judgments. The circuit court, after overruling cross-motions to dismiss the proceeding, entered an order modifying the judgments entered in vacation, reducing each of them the amount of the attorney's fees allowed, and directing that the lien of the executions thereon be postponed and made junior to those of the parties making the motion. From this order in each of the four cases the bank appealed to the Appellate Court, where the ruling of the circuit court, in so far as it gave priority to the judgments of these appellants, was reversed, that court holding that while the order modifying the judgments to the extent of the attorney's fees was right, the judgments so modified were still entitled to priority. Appellant brings the cases to this court, seeking a reversal of the judgment of the Appellate Court. four cases are argued and considered as one.

The motions to set aside the judgments in favor of the bank were based upon the following alleged reasons: First, that said Seitz is insolvent, and has no property except said stock of dry goods, etc.; second, that executions were issued upon each of the four judgments entered on the 14th day of November, 1894, in favor of the First National Bank of Pana, Ill., and against A. C. Seitz and Seitz & Craddick, on November 14, 1894, and delivered to said sheriff, and by him levied upon and taken possession of the whole of said stock of goods, fixtures, etc., as the property of said Seitz, and that said property is not suf ficient to satisfy said four executions in favor of said bank and the execution in favor of plaintiff herein, and that said sheriff is proceeding to sell said stock of goods under and by virtue of said execution and levies in favor of the First National Bank of Pana, Ill., and to apply the proceeds of such sale in payment and satisfaction thereof;

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