Beale v. Hileman

• Decision Date: 25 January 1886
• Citation: 115 Ill. 355,5 N.E. 108
• Parties: BEALE v. HILEMAN.
• Court: Illinois Supreme Court

115 Ill. 355

5 N.E. 108

BEALE

v.HILEMAN.

Supreme Court of Illinois.

Filed January 25, 1886.

Appeal from appellate court.

J. N. Lausden, for appellant.

Andrew D. Duff, for appellee.

TUNNICLIFF, J.

The appellee recovered a judgment in the Union circuit court, against appellant and Joseph Bean jointly, for about $7,000. Both joined in praying an appeal to the appellate court for the Fourth district, which was allowed upon condition of their entering into bond in the sum of $10,000 within 30 days, with security to be approved by the clerk of the court. Both executed the appeal-bond, but before it was approved by the clerk, Bean erased his name, and thereupon Beale procured other persons to sign the bond, and the same was then approved by the clerk. In the appellate court the appeal was dismissed, on motion of appellee, because the appeal-bond was not signed by Bean, and therefore not in compliance with the order of the court in granting the appeal. Appellant brings the case to this court, and assigns for error in the appellate court the dismissal of the appeal.

This appeal was properly dismissed. It was held by this court, as early as 1841, under a statute similar, in all essential particulars, to the one now in force, so far as regards the question here presented, that where a judgment was rendered against two or more, and an appeal is prayed by all, and granted upon condition of their entering into bond, the condition and order must be complied with, or the appeal cannot be perfected. Carson v. Merle, 3 Scam. 168, and followed by Ryder v. Stevenson, Id. 539; Watson v. Thrall, 3 Gilman, 69;Johnson v. Barber, 4 Gilman, 1.

The case of Willenborg v. Murphy, 40 Ill. 46, relied upon by appellant, holds only that where there was a decree against only one of two defendants, but they having joined in praying an appeal, and in the execution of the appeal-bond, that the bond will be good as to the one against whom the decree was rendered, and that a misrecital in the bond that the decree was against both, instead of only one, could be corrected on cross-motion to amend, and thus obviate a dismissal of the appeal on motion made for that purpose. What else was said in the opinion as to the right of one to perfect an appeal from a judgment against two, where they had joined instead of severing in their prayer for an appeal, was obiter dicta. In the subsequent case of The Niagara v. Martin, 42 Ill. 106, it was again held that, where an appeal is...