Bradley v. Gilbert

• Decision Date: 15 January 1895
• Citation: 39 N.E. 593,155 Ill. 154
• Parties: BRADLEY v. GILBERT et al.
• Court: Illinois Supreme Court

155 Ill. 154

39 N.E. 593

BRADLEY

v.GILBERT et al.¹

Supreme Court of Illinois.

Jan. 15, 1895.

Appeal from appellate court, First district.

Bill for injunction by J. Harley Bradley against James H. Gilbert, sheriff of Cook county, and others. The bill was dismissed on demurrer. Complainant appeals. Affirmed.Hamline, Scott & Lord, for appellant.

E. R. Bliss and L. W. Post, for appellees.

WILKIN, C. J.

Appellant, as a resident and taxpayer of Cook county, filed his bill against appellee sheriff, John M. Green, president of the board of commissioners, and Charles Kern, treasurer, officers of that county, to enjoin the payment of two certain claims alleged to have been presented by said sheriff to and allowed by the board of commissioners for dieting prisoners. The bill alleges that the board of commissioners, by two resolutions, of date July 31, 1891, and December 29, 1891, agreed to allow said sheriff 25 cents per day for dieting each prisoner at the county jail, and that the claims sought to be enjoined were afterwards presented and allowed for that amount by the board, without any showing as to the actual cost of such dieting, which did not exceed 7 cents per day for each prisoner; that the resolutions by the board ‘were illegal and void, and thereby an attempt had been made by said board and the said Gilbert to resolve that twenty-five cents per day per prisoner was the actual cost and expense to said sheriff, Gilbert, of keeping and maintaining the prisoners of Cook county in the county jail thereof, in advance of the incurring of any such costs and expenses which might thereafter be incurred by said sheriff, Gilbert, for keeping and maintaining the prisoners of Cook county in the county jail thereof, and in controvention and in defiance of the statutes of Illinois governing said Gibert and said board’; that said sheriff would, unless restrained, collect from the county treasurer of Cook county the bills so illegally allowed; that said president of the board of commissioners would, unless restrained, ‘issue and sign two orders drawn upon Charles Kern, the treasurer of the county of Cook,’ ordering the payment of said claims; that ‘said Charles Kern intends to and will, unless restrained, * * * pay the amount of said orders to said Gilbert when the same are presented to him,’ etc. The prayer was that the sheriff be decreed to have no claim against the county on account of said claims, and enjoined from endeavoring to collect the same, or receiving any order therefor; that the defendant Green be enjoined from signing any orders therefor, and the defendant Kern from paying any such orders if drawn. A temporary injunction was issued as prayed. Green answered, confessing all the allegations of the bill. Kern made no answer, and Gilbert filed a general demurrer, which was sustained, and the bill ordered dismissed as to him. The complainant thereupon, of his own motion, dismissed the same as to the other defendants, but prayed an appeal to the appellate court, which was allowed. He also entered his motion in the circuit court, and afterwards in the appellate court, for an order continuing the injunction pending the appeal; but it was denied in both courts. On a hearing in the appellate court the decree of the circuit court was affirmed, on the decree of the no relief could be granted on the bill for want of proper parties. This appeal is presented to reverse that judgment, and the argument of counsel here is mainly directed to the question of necessary parties to the bill. Appellant refiled his argument in the appellate court on the merits.

When a want of proper parties to a suit in equity is apparent upon the face of the bill, the proper mode of taking advantage of the omission is by demurrer. In this case, if the bill, as...