Bills v. Stanton
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8411,69 Ill. 51 |
| Parties | ROSWELL BILLS et al.v.MATTHEW STANTON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria county.
This was an action of debt, brought by Matthew Stanton for the use of Henry W. McClallen, against the Illinois Mutual Life Insurance Company, Roswell Bills and David McKinney, upon an appeal bond. The opinion of the court presents a sufficient statement of the facts. Bills and McKinney appealed from the judgment below.
Messrs. COOPER & LAPHAM, for the appellants.
Messrs. MCCULLOCH & STEVENS, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:
The objections taken to the judgment in this case, are all of the most technical character. The action was brought on an appeal bond against the ““Illinois Mutual Fire Insurance Company,” and appellants, who were sureties for the company. In the second count of the declaration the bond is set out in hæc verba. It bears date the blank day of June, 1869, and recites a judgment obtained on the blank day of May, 1869. The original declaration contained three counts, to which a demurrer was interposed by all the defendants, and was sustained by the court as to the first and second counts, and overruled as to the third count. The declaration was then amended, and appellants then filed their several pleas: 1st, nil debet; 2d, non est factum; 3d, nul tiel record as to the supposed recovery in the circuit court; and 4th, a like plea as to the recovery in the Supreme Court. A demurrer was sustained to the first and third pleas, and issue joined on the second and fourth pleas.
It is conceded that the first and third pleas were bad, but it is insisted the demurrer should have been carried back to the declaration. It is not perceived how this could be done. A demurrer had been previously overruled as to one count of the declaration, and if this demurrer could be carried back, it would simply be to ask the court to reconsider its former judgment, holding that count good. This could not be done. The demurrer interposed to the several pleas was general, and it is a familiar rule in pleading, if there is one good count in the declaration, it will be sufficient on general demurrer. It is not necessary, therefore, to consider the objections taken to the declaration.
It is certainly no objection to the validity of the bond that it bears date the blank day of a certain month named, and recites a judgment recovered on a blank day of the month. It is, nevertheless, the voluntary bond of appellants, and is obligatory on them. On its face it purports to have been executed in June, 1869, and recites a judgment recovered in May of that year.
It is urged it is not the bond of the company. In the body of the bond it is recited that the company, by its corporate name, entered into the obligation, and it is signed by its president and secretary, and sealed with its corporate seal. No reason is perceived why this is not a sufficient execution of the bond in the name of the company.
It is suggested there is a variance between the proof offered and the declaration. This objection certainly can not be maintained as to...
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Kimball v. Citizens' Sav. Bank.
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...that mere leave to withdraw an appearance, not consummated by actual withdrawal, is ineffective for any purpose, Bills et al. v. Stanton (1873), 69 Ill. 51, and if the judgment of September 27, 1943, was, in truth, a default judgment it is a nullity. A default occurs when a party fails to a......
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The Vill. of Hyde Park v. Waite
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