Smith v. Lozano
| Decision Date | 30 April 1878 |
| Citation | 1 Bradw. 171,1 Ill.App. 171 |
| Parties | PETER SMITHv.FUSTENO LOZANO ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
Mr. John M. Gartside, for appellant; in support of the rule as to proceeding against all the defendants to judgment, cited Byers v. First Nat. Bank, 10 Chicago Legal News, 108; Hoyt v. Frul, 8 Abb. Prac. 220; Bump on Bank'cy, 687; Ladd et al. v. Edwards, Breese, 182.
As to plea of payment of the judgment, and satisfaction by levy, Smith v. Hughes, 24 Ill. 276; Hood v. Moore, 4 Gilm. 99; Gregory v. Stark, 3 Scam. 612; Shepard v. Rowe, 14 Wend. 263; Wood v. Torrey, 6 Wend. 564; Harris v. Evans, 81 Ill. 419; Corbin v. Pearce, 81 Ill. 461; Herrick v. Swartwout, 72 Ill. 340; Ambrose v. Weed, 11 Ill. 488; Brush v. Seguin, 24 Ill. 254.
As to taking up cases out of their order, Smith v. Third Nat. Bank, 79 Ill. 118; McCormick v. Wells, 83 Ill. 239.
Messrs. Tenneys, Flower & Abercrombie, for appellees; contending that plaintiffs might discontinue as to one of the obligors who had suggested his bankruptcy, and proceed against the other, cited Rev. Stat. 620; Evans v. Lohr, 2 Scam. 511; Wallace v. Curtis, 36 Ill. 156; Com. Ins. Co. v. Treasury Bank, 61 Ill. 482.
That the court has power to order a case tried out of its order, Rev. Stat. 777; Linnenmeyer v. Miller, 70 Ill. 244.
That the plea of non est factum admits all the material allegations of the declaration, denying merely the execution of the bond, Pritchett et al. v. The People, use, etc. 1 Gilm. 525.
This was an action of debt upon an appeal bond given upon an appeal from a judgment of the Superior Court of Cook county to the Supreme Court.
The declaration alleges that on the 17th day of April, 1876, one Patrick L. Garrity as principal, and appellant as surety, executed to appellees an appeal bond in the penalty of $1,500, which bond, after reciting the recovery on the 6th day of April, 1876, of a judgment in said Superior Court in favor of appellees against said Garrity for $934.49 and costs, and the taking of an appeal therefrom to the Supreme Court, was conditioned for the prosecution of said appeal and the payment of said judgment, interest, costs and damages, in case of the affirmance of said judgment by the Supreme Court.
The declaration further alleges an affirmance of said judgment by the Supreme Court on the 22d day of June, 1877, and the non-payment thereof by said Garrity.
The suit was originally commenced against appellant and Garrity jointly, who both appeared and filed their pleas of nil debet. Subsequently Garrity was adjudicated a bankrupt, and thereupon filed a certified copy of the order of adjudication of bankruptcy, and asked that the proceedings in the suit be stayed, as to him, to await the determination of the bankruptcy court on the question of his discharge. Leave was thereupon granted appellees on their motion, against the objection and exception of appellant, to discontinue the suit as to Garrity, and to file an amended declaration against appellant alone. The suit was subsequently prosecuted and judgment rendered against appellant, from which judgment this appeal is prosecuted.
The first error assigned is the granting of appellees' motion to discontinue the suit as to the principal obligor, before the result of the bankruptcy proceedings was determined, and permitting appellees to proceed to judgment against the surety alone.
We are referred, in support of this assignment, to the recent case of Byers v. The First National Bank, 10 Legal News, 108, in which the Supreme Court hold that in such cases the proper practice is to proceed with the suit against all the defendants to final judgment, notwithstanding the adjudication of bankruptcy, and then enter an order staying execution against the bankrupt until the question of his discharge is determined.
It cannot be doubted that it would have been a proper practice had appellees pursued the course thus indicated by the Supreme Court, but it does not follow that no other course of proceeding was open to them. The obligation which is the foundation of the suit, is, by the statute declared to be both joint and several, and appellees were at liberty to treat it either as joint or several. Their suit might properly in the first instance have been brought against appellee alone, and their bringing suit against both obligors jointly, did not debar them of the right to discontinue as to one obligor and proceed to judgment against the other. This right existed wholly independent of the bankruptcy proceedings, or the provisions of the bankrupt act, and the mere fact that one of the obligors was adjudicated a bankrupt did not divest it.
The next error assigned is the sustaining of a demurrer to appellant's third and fourth pleas.
These pleas allege that on the day of the rendition of the judgment against Garrity, an execution was issued thereon, which, on the following day, and before the filing of the appeal bond, was levied upon a sufficient amount of the goods and chattels of Garrity to satisfy the judgment, and that such levy is still in full force. The fourth plea further avers the execution by Garrity to the sheriff of a delivery bond, conditioned for the safe keeping of said property and the return thereof to the officer according to law, and that said property then and there was, and still is, in the possession of said sheriff.
The theory of these pleas is that by this levy the judgment against Garrity was satisfied, in contemplation of law, before the execution of the appeal bond, and that appellees cannot now insist that said judgment is outstanding and unpaid.
It is undoubtedly true that a levy upon a sufficient...
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