O'connell v. Rea

• Decision Date: 30 September 1869
• Citation: 1869 WL 5332,51 Ill. 306
• Parties: TIMOTHY O'CONNELL, for the use of RALPH C. PYLEv.JOHN W. REA et al.
• Court: Illinois Supreme Court

51 Ill. 306

1869 WL 5332 (Ill.)

TIMOTHY O'CONNELL, for the use of RALPH C. PYLE

v.JOHN W. REA et al.

Supreme Court of Illinois.

September Term, 1869.

WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

The opinion states the case.

Mr. JOHN CLARK, for the plaintiff in error.

Messrs. INGERSOLL & MCCUNE and Mr. S. D. PUTERBAUGH, for the defendant in error. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This record shows that an action was brought in the Circuit Court of Woodford county, by Timothy O'Connell for the use of Ralph C. Pyle, against John W. Rae and John T. Harper, on an attachment bond.

At the term of the court to which the summons was returned, the defendant Harper, entered a motion to rule the nominal plaintiff to give security for the costs, on his affidavit filed, that he was insolvent, saying nothing as to the responsibility of the cestui que use.

A rule was entered against O'Connell, to show cause by the next morning. He failed to answer the rule in any way, and on motion of the defendants' attorney, the suit was dismissed at the plaintiff's costs.

The question is, was this action of the court proper? There is no difficulty in its proper solution.

Section 16 of the act entitled “Costs,” provides, when any suit is commenced in the name of one person to the use of another, the person to whose use the action is brought, shall be held liable and bound for the payment of all costs which the plaintiff may be adjudged or bound to pay, to be recovered by action on the case; but by the twenty-fourth and last section of the same act, it is provided, among other things, that where an action is brought to the use of another, and the plaintiff shall be adjudged to pay the costs, either before or upon final judgment, it shall be lawful for the clerk to make out and tax a bill of costs so adjudged to be paid, against the party adjudged to pay the same and against his security for costs, or other person liable for the payment thereof, or either of them, and certify the same under the seal of the court, which being delivered to the sheriff of the proper county, he shall demand payment from the person therein charged; if payment shall not be made accordingly, within thirty days after such demand, the sheriff shall levy the same on the goods and chattels, lands and tenements, of the person so chargeable, and proceed therein in all things as on a writ of fieri facias. Gross' ...