City of East St. Louis v. Renshaw

• Citation: 153 Ill. 491,38 N.E. 1048
• Parties: CITY OF EAST ST. LOUIS, to Use of DOWD, v. RENSHAW et al.
• Decision Date: 23 November 1894
• Court: Supreme Court of Illinois

153 Ill. 491

38 N.E. 1048

CITY OF EAST ST. LOUIS, to Use of DOWD,

v.RENSHAW et al.¹

Supreme Court of Illinois.

Nov. 23, 1894.

Appeal from appellate court, Fourth district.

Action by the city of East St. Louis, for the use of John Dowd, against John W. Renshaw, Franklin B. Bowman, Patrick M. Sullivan, Gustave Horn, and John A. Vollmann, upon an official bond. Defendants obtained judgment, which was affirmed by the appellate court. Plaintiff appeals. Affirmed.

G. & G. A. Koerner and J. J. Rafter, for appellant.

F. G. Cockrell, for appellees.

This is an action brought by the city of East St. Louis, for the use of John Dowd, against John W. Renshaw, city treasurer of that city, and the sureties upon the official bond of said Renshaw, as such city treasurer. The declaration avers that the bond, which was in the penal sum of $100,000, was executed on April 13, 1887, and on the next day acknowledged and approved. The condition of the bond, as set forth in the declaration, after reciting that Renshaw had been appointed city treasurer by the city council of said city at its meeting April 13, 1887, provides that ‘if the said John W. Renshaw shall well and truly perform the duties of said office, and promptly account for and turn over to his successor, or other person designated to receive the same, all monies, books, papers, property, and valuables coming into his hands as such officer, as directed by the city council, then this obligation to be void, otherwise to remain in full force.’ The breach assigned is as follows: ‘And for assigning a breach of the condition of said bond plaintiff says that on, viz. the ___ day of _____, A. D. 1888, the said defendant had in his hands, as said treasurer, the sum of viz. two thousand dollars, which said sum he had been directed to hold by the circuit court of St. Clair county, in chancery sitting, by an order of said court made in a certain cause therein pending, wherein the said John Dowd was complainant, and the said city of East St. Louis and the said John W. Renshaw were defendants, and which said sum the said city, by its city council, ordered and directed the said Renshaw, as treasurer, to pay over to the parties entitled thereto, as shown by the said bill, which parties then held certificates of indebtedness or warrants, executed by the said city of East St. Louis, of which certificates or warrants the said John Dowd is now, and was at the beginning of this suit, the legal holder. Yet the said defendant Renshaw did not pay to said John Dowd the said money aforesaid, as directed by the said city council, although often requested to do so, and still refuses to do so.’ Six pleas were filed to the declaration, which were demurred to. The demurrers were sustained, and, the defendants electing to stand by their pleas, damages were assessed and judgment rendered for $100,000 debt, to be satisfied upon payment of $1,967.95 damages and the costs. Upon appeal to the appellate court, this judgment was reversed on February 4, 1890, and the cause was remanded to the circuit court. 34 Ill. App. 450. Of the six pleas which had been filed to the declaration, four had been demurred to, and the demurrers sustained, and leave was given to amend. The other pleas were the two amended pleas which had been filed afterwards, on October 4, 1888, and which were also demurred to, and the demurrers were sustained. After the cause was remanded, the circuit court overruled the demurrers to the amended pleas, and, the plaintiff electing to stand by its demurrers, judgment was overruled in favor of the defendants, and against the plaintiff for costs. This judgment in favor of the defendants, upon a second appeal to the appellate court, has been affirmed. The present appeal is prosecuted from such judgment of affirmance.

The first of the amended pleas avers that one Martin Martell was, on April 13, 1888, appointed city treasurer of said city by its city council, and was duly qualified as such, and became the successor in office of said Renshaw as treasurer, and entered upon the duties of the office, and ‘that since the last continuance of this cause, to wit, on the 5th day of June, A. D. 1888, the said Martin Martell, as such treasurer, and as successor of the said John W. Renshaw, by the direction of the city council of said city, to wit, on the 9th day of July, A. D. 1888, demanded the same sum of $2,000 mentioned in plaintiff's declaration of said John W. Renshaw, and the said John W. Renshaw, on the day and year last aforesaid, at the county aforesaid, by the direction of the city council of said city, paid the same $2,000 in plaintiff's declaration to his successor in office, the said Martin Martell, and this the said defendants are ready to verify; wherefore they pray judgment,’ etc. The second amended plea is substantially the same as the first, except that it avers the payment of the $2,000 mentioned in the declaration to the plaintiff, the city of East St. Louis.

MAGRUDER, J. (after stating the facts).

The question in the case is the sufficiency of the amended pleas. We cannot see why the first amended plea, considered by itself, does not present a good defense. Renshaw bound himself by his bond to promptly turn over to his successor all moneys coming into his hands as city treasurer, ‘as directed by the city council.’ The plea avers that his successor was appointed and qualified, and had demanded the money, and the city council had directed him to pay it over to such successor, and he had done so. The averment is that he did just what his bond required him to do. It is claimed, however, that the plea, being a plea puis darrein...