Cleveland v. Skinner
| Decision Date | 30 September 1870 |
| Citation | 1870 WL 6569,56 Ill. 500 |
| Parties | JOSEPH H. CLEVELAND, impleaded, etc.,v.OSCAR SKINNER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.
This was an action of debt upon a bail bond, brought by appellees against Finch, as principal, and appellant, one P. R. Morgan and W. J. Chamberlain, as sureties. The record contains no summons, but the declaration is entitled of the October term of the superior court, 1869. On the 19th same month, Morgan's default was entered. On the 1st November, 1869, Cleveland entered his appearance and filed four several pleas, in substance as follows: 1. That he did not owe the debt jointly with the other defendants. 2. That he was served with summons in this case on the 22d day of October, 1869, and on the 25th same month he, as bail, took Finch, the principal, into the circuit court of that county, the same being the court in which the proceedings were had against Finch, wherein the bail was given, and there, in open court, surrendered him into the custody of the sheriff, and the court ordered the surrender and commitment of Finch into custody of the sheriff to be entered of record. Third plea substantially like the second. Fourth plea like the second, except that a surrender was alleged to have been made in the superior court.
To the first plea the plaintiffs demurred. To the second and third, replied, that after judgment in original suit, the issuing and return of ca. sa. upon that judgment, and on the 20th of September, 1869, they commenced this suit by summons against all the defendants, returnable to the October term, 1869, which was served by the sheriff on Morgan, the 22d September, and as to the other defendants, the sheriff, on the 4th October, 1869, made return that they were not found. That on the 18th same month an alias summons was issued, which was the same writ served upon Cleveland on the 22d, and referred to by him in his plea, wherefore they alleged that the surrender, after the return of the original summons served upon Morgan, was invalid and nugatory.
To the fourth plea plaintiffs replied double: 1st. The same matter as to second and third pleas; and 2d. That the surrender in the superior court was without notice to them, and they were not present at the time. Defendant Cleveland demurred to all of plaintiffs' replications specially.
The court sustained plaintiffs' demurrer to Cleveland's first plea, and overruled his demurrers to plaintiffs' replications, and rendered final judgment against appellant and Morgan. Cleveland brings the case here by appeal, and he alone assigns error upon the record. Messrs. KNOWLTON, JAMIESON & SCALES, for the appellant.
Mr. JOHN LYLE KING and Messrs. BACON & NORTON, for the appellees.
The position taken by appellant's counsel, that after the judgment taken against Morgan, his co-defendants not served with the original summons could be brought in only by scire facias, is not tenable. That judgment was but the ordinary interlocutory judgment by default; and then a continuance to assess damages, which was done at the same time of assessing damages against appellant. This practice was regular and proper.
The only other questions requiring consideration arise upon the decision of the demurrers. The demurrer to appellant's first plea merely denying a joint indebtedness was properly sustained. A plea of nil debet, good in form, would not be admissible in this action. The plea in question was but a departure from the form of nil debet. It is a mere denial of the operation of the instrument, without denying its execution. It does not and could not properly draw into question the effect of the judgment by default against Morgan. Where matters exist dehors the pleadings, upon which a release or merger may be predicated, such matters must be incorporated into the plea. If the plaintiff, at the time of the judgment against Morgan, instead of taking it, had come into court and acknowledged, by entry of record, a release of Morgan, appellant could not avail himself of the release, by denying a joint liability, but to do so, should plead the release.
The remaining question arises upon the judgment of the court in overruling appellant's demurrer to appellees' replications. This question involves, not only the sufficiency of the replications, but of the pleas also. It is an...
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Stott v. City of Chicago
...the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance.’ Cleveland v. Skinner, 56 Ill. 500. In Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354, it is said (page 359): ‘By the well-settled principles of pleading, the demurrer wo......
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Edey v. Fath
...is but a summons, and an attachment in aid may issue upon a return of summons “not found:” Coursen v. Hixon, 78 Ill, 339; Cleveland v. Skinner, 56 Ill. 500. Scire facias may issue at any time without an order of court: Tiffany v. Breese, 3 Scam. 499; Ryder v. Glover, 3 Scam. 547. Where ther......
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Begole v. Stimson
...Illinois no surrender can be made after the return day of the process in a suit on the recognizance, Gear v. Clark, 3 Gilm. 64; Cleveland v. Skinner, 56 Ill. 500. Graves, J. This is a certiorari to a circuit court commissioner to review his refusal to exonerate plaintiffs as special bail fo......
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Skolnik v. United States
...That was a civil case, and not governed by the common law, but by a statute of Illinois. The Supreme Court of Illinois, in Cleveland v. Skinner, 56 Ill. 500, 504, said: "The whole subject of the law, as to the steps to be taken, and by whom, to discharge bail by surrender of the principal, ......