Beveridge v. Chetlain

• Decision Date: 30 April 1878
• Citation: 1 Bradw. 231,1 Ill.App. 231
• Parties: JOHN L. BEVERIDGE, use, etc.,v.AUGUSTUS C. CHETLAIN, Administrator.
• Court: United States Appellate Court of Illinois

1 Ill.App. 231

1 Bradw. 231

JOHN L. BEVERIDGE, use, etc.,

v.AUGUSTUS C. CHETLAIN, Administrator.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.

Messrs. Miller & Frost and A. L. Rockwell, for appellant; arguing that a bail bond is valid, although not in double the amount endorsed upon the writ, cited Fournier v. Faggot, 3 Scam. 347; Young v. Mason, 3 Gilm. 55; Pritchett v. The People, 1 Gilm. 525; Holbrook v. Klenert, 113 Mass. 268.

That the bond having been destroyed by fire, secondary proof of its contents was admissible: 1 Greenl. Ev. 109; Starkie's Ev. 271; Buchanan v. Moore, 10 Serg. & Rawle, 275; White v. Lovejoy, 3 Johns. 448; Dillingham v. Snow et al. 5 Mass. 547; Stockbridge v. West Stockbridge Co. 11 Mass. 400; Harvey v. Thomas, 10 Watt. 63; Heirs of Ludlow v. Johnson, 3 Ohio, 69; Nelson v. Boynton, 3 Met. 96.

That a new trial should have been granted: DeGion v. Dover, 2 Aust. 517; Hewlett v. Cruchley, 5 Taunt. 277; Richardson v. Fisher, 1 Bing. 155.

Messrs. Small & Moore, for appellee; that a bail bond is void unless taken pursuant to the statute, cited Fournier v. Faggot, 3 Scam. 347; Stafford v. Low, 20 Ill. 152.

That the statute having provided a method of restoring lost records, and the plaintiff having restored a portion of the record under the statute, no action can be maintained upon the bail bond unless the same has been restored: Steveson v. Earnest, 80 Ill. 513.

BAILEY J.

On the 20th of October, 1868, Oliver Smith being about to commence, in the Circuit Court of Cook County against one George Aylesworth, an action on the case for false imprisonment, filed his affidavit as required by the statute, and thereupon sued out a writ of capias ad respondendum, upon which said Aylesworth was arrested and held to bail. Aylesworth, thereupon, executed to John L. Beveridge, then sheriff of Cook county, a bail bond in the penal sum of $3,000, with Martin O. Walker as his surety, and was discharged from said arrest.

While this suit was pending and undetermined, the files and records in the case were destroyed by the great fire of October 9th, 1871. Afterwards the plaintiff filed a petition under the provisions of the act of March 19, 1872, relating to the restoration of lost records, to have a certain portion of the records in said suit restored; and upon notice to Aylesworth, an order was entered restoring the affidavit, declaration and pleas. A trial was afterwards had, resulting in a judgment in favor of the plaintiff and against the defendant for $6,000 and costs. Upon this judgment a writ of fieri facias was duly issued and returned wholly unsatisfied. Subsequently a writ of capias ad satisfaciendum was issued against Aylesworth, and returned non est inventus.

Pending these proceedings, Martin O. Walker, the surety on the bail bond, died, and after the return of the last mentioned writ, a claim against his estate was filed in the County Court of Cook county, to enforce his liability on said bond. The County Court, upon a hearing of the matter of this claim, found the issues for the administrator and rendered judgment against the claimant for costs. From this decision said claimant prosecuted an appeal to the Circuit Court, and upon a trial in that court the issues were found for the administrator, and the Court, after overruling a motion by said claimant for a new trial, rendered judgment against him, affirming the judgment of the County Court and for costs. Subsequently, at the same term, a further motion was interposed to vacate said judgment and award a new trial, on the ground of newly discovered evidence, which motion was overruled and exception taken.

On the trial in the Circuit Court appellant was permitted, against the objection of appellee, to give in evidence the restored affidavit and pleadings, and also to give secondary evidence of the original capias ad respondendum, the endorsement thereon, and the bail bond. The judgment below being in appellee's favor, we cannot see how he has been prejudiced by this ruling, even if it was erroneous. He has assigned no cross errors, and we are aware of no principle upon which he can be permitted to call it in question. As the admissibility of this testimony, however, has been elaborately argued by counsel on both sides, we are inclined to indicate our opinion in respect to it.

So far as secondary evidence was admitted to prove the contents of the portions of the record not restored, we think the ruling of the Court below was undoubtedly correct. The relief of which parties may avail themselves under the provisions of the Burnt Records Act is not exclusive, but is merely cumulative upon the rights and remedies existing independently of its provisions. It has always been held that where a judicial record, or other paper is shown to be lost or destroyed, resort may be had to secondary evidence to prove its contents. Records are deemed, in law, to be still in existence and binding upon the parties whose rights are affected thereby, although, in point of fact, they may have been destroyed. A judgment of a court, or a bond entered into in the course of a judicial proceeding, loses none of its vitality upon destruction of the writing, which is the primary evidence of its existence. Its contents may still be proved, and its provisions enforced to the same extent as though the paper itself were capable of being produced in evidence. The capias and bond having been destroyed, appellant was entitled to avail himself of their provisions by means of secondary evidence notwithstanding the restoration of other portions of the record under the provisions of the act.

But it appears that the surety on the bail bond had no notice of the proceedings by which the affidavit and pleadings were restored. The restored record, at least so far as he was entitled to be heard on the question of its correctness, was, as to him, a nullity. Harris v. Lester et al. 80 Ill. 307. To that extent it could not be received in evidence against him or his representative. This being the case, we fail to see any principle upon which it can be set up as a ground for excluding secondary evidence of those portions of the record not restored.

We think the court decided correctly in admitting in evidence the restored record of the pleadings. Had the surety on the bail bond been served with notice of the petition to restore the declaration and pleas, we cannot see upon what principle he would have been entitled to object that the documents offered to be substituted for those destroyed were not true copies of the same. He was in no sense a party to the pleadings, and had no interest in their subject matter, except so far as they might be resorted to for the purpose of establishing the identity of the cause of action upon which the judgment was rendered with that for which the capias was issued. That identity depended upon the condition of the pleadings as they stood at the time of the trial and judgment, and not upon their condition at any previous period in the history of the suit. It would have been competent for the parties, by leave of the court, at any time before final judgment, to have changed the form of the pleadings to any extent, provided the identity of the subject matter of the litigation was preserved; and such changes would in no manner have affected the liability of the surety on the bond. It was then unimportant, so far as the surety was concerned, whether the pleadings restored were or were not identical with those destroyed.

We are inclined, however, to doubt the correctness of allowing the record of the restored affidavit to be given in evidence against the appellee. The liability of the surety on the bail bond was directly dependent upon the sufficiency of the affidavit, and had appellee been able to show that the case there made was not sufficient to justify the issuing of the capias, he would have made out a complete defense. Stafford v. Low, 20 Ill. 152. The surety, then, was directly interested in seeing...