majority">Mr. Presiding Justice Brown

delivered the opinion of the court.

The judgment appealed from was rendered in the County Court after a trial on the merits. The evidence is not preserved in full, but the only question mooted was whether Alfred B. Chandler had, subsequently to June 13, 1901, the date of his discharge in bankruptcy, by any action or promise, revived his indebtedness on the note sued on, from which he had been discharged.

The bill of exceptions says that “Plaintiff, Irving D. Wilson and Richard Carey, each severally testified tending to prove that defendant Alfred B. Chandler had declared, stated and promised, subsequently to June 13, A. D., 1901, and prior to the commencement of this suit, that he would pay the whole of the balance of the note.” The note itself, introduced in evidence, showed indorsements of payments on it at dates subsequent to June 13, 1901. The bill of exceptions also says: “Defendant Alfred B. Chandler testified tending to prove that he had not made any such new declaration, statement and promise, and that his attorney had cautioned him not to make any such declaration, statement and promise.”

Under this state of the evidence the instruction complained of was fully justified. The use of the words, “declared that he would pay,” in the bill of exceptions, throws light on the use of the rather unusual expression, “A declaration to pay,” in the instruction.

But the meaning of the instruction is plain. Its doctrine is borne out by the opinions of our Supreme Court, of the Supreme Court of the United States, and of this court, in the cases cited by appellees’ counsel. The rule is different from that existing in the case of a debt barred by the Statute of Limitations. A discharge in bankruptcy releases the debt, although it leaves a moral obligation to serve as the consideration for a new promise. The Statute of Limitations merely takes away the remedy, and may be waived by not urging it. St. John v. Stephenson, 90 Ill., 82; Allen v. Ferguson, 18 Wall., 3; Willets v. Cotherson, 3 Ill. App., 644.

Perhaps the instruction might have been objectionable as not containing all it ought to, had it stood alone; but connected as it was with instructions 6, 9, 11, 13 and 14, given at the instance of the plaintiff, and instructions 1, 2, 3, 4, 5 and 6, given at the instance of the defendant A. B. Chandler, it could not have misled the jury.

The chief contention of the appellant, however, is not on the merits, but that anything and everything done by the County Court in this case since the January term, 1906, ended, must be erroneous because void. It is insisted that the County Court having dismissed the appeal on January 8, 1906, lost jurisdiction of it entirely on February 10, 1906, when that term ended, and has never been revested with it. It is the last clause of this contention which appellee denies. She insists that by the subsequent proceedings of the defendants and the plaintiff, the court, whatever may be said of its action on March 3, 1906, in vacating the order of January 8, 1906, was revested with jurisdiction of the parties, and any error in the method by which the cause was again brought before it was waived. Jurisdiction of the subject-matter is conceded.

We think the case of Schafer v. Moe, 72 Ill. App., 50, and the cases cited therein of Herrington et al. v. McCollum, 73 Ill., 476; Prall v. Hunt et al., 41 Ill. App., 140; National Union Building Ass’n v. Brewer, 41 Ill. App., 223, and Schmohl v. Fiddick, 34 Ill. App., 190, sustain the appellee’s view of the matter.

We are unable to perceive the distinction in logic and principle, which appellant attempted in argument to point out, between revesting the court with jurisdiction of the parties by appearance and participation in a trial after the suit is dismissed, and doing the same thing by the same means after the appeal is dismissed.

It is true that the plaintiff at various stages of the case after February, 1906, renewed her objection to proceeding, and asserted that the order of March 3 should be vacated and the order of January 8 be allowed and declared to stand. But, protesting, she nevertheless consented to the subsequent trials by taking part in them.

The objection to the jurisdiction, says the court in Schafer v. Moe, supra, “ must be persisted in and solely relied on, in order to be available.”

The plaintiff, if unwilling to risk the chances of success on the merits of her cause, should have refused to participate in the trial of it, after making her protest against the action of the court. If she were willing, she must “stand the hazard of the die.” Otherwise she would have been experimenting with the court—willing to accept the benefit of its decision and process as authoritative if in her favor, but intending to repudiate them as absolutely void if against her.

In this case there has been indeed an especially active participation on the part of the plaintiff in securing the action of the court which she now seeks to discredit as extra-jurisdictional. The last trial—the one of June, 1906— which resulted in the judgment now appealed from, was the direct result of the plaintiff’s action. She secured “the new trial” after the trial and verdict of April 18, 1906.

The judgment of the County Court must be affirmed.

Affirmed.

Citation profile

How this case has been treated — in progress