Ellison v. Ward

• Decision Date: 09 March 1938
• Docket Number: Ag. No. 3.
• Citation: 294 Ill.App. 197,13 N.E.2d 649
• Parties: ELLISON ET AL. v. WARD ET AL.
• Court: United States Appellate Court of Illinois

294 Ill.App. 197

13 N.E.2d 649

ELLISON ET AL.

v.WARD ET AL.

Ag. No. 3.

Appellate Court of Illinois, Fourth District.

March 9, 1938.

Appeal from Circuit Court, Franklin County; Roy E. Pearce, Judge.

Action by John Darwin Ellison, a minor, by his next friend, and others, against Terzie K. Ward, trustee, and others to enforce statutory stockholders' liability. From an order dismissing the suit with prejudice and at plaintiffs' costs, the plaintiffs appeal.

Order reversed and cause remanded, with directions. D. F. Moore, of Benton, and Henry T. Martin, of Chicago, for appellants.

Roy C. Martin, W. H. Hart, Layman & Johnson, Hickman & Hickman, Williams & Harrison, and Moses Pulverman, all of Benton, for appellees.

EDWARDS, Justice.

This action was brought by plaintiff, a minor, by next friend, against the stockholders of an insolvent bank to enforce the statutory stockholders' liability. The bill of complaint was filed in 1933, before the Civil Practice Act, Smith–Hurd Stats. c. 110, § 125 et seq., became operative, and the pleadings were drafted under the Chancery Act, Smith–Hurd Stats. c. 22, § 1 et seq. and notes, as then in force.

Plaintiff, being ruled to file a bond for costs, did so, and upon motion it was stricken as being insufficient, as was also a second similar obligation. The chancellor then ruled plaintiff to file a sufficient bond within ten days, which plaintiff attempted to do by filing within the time limited the following document:

“I hereby enter myself security for costs in this cause, and acknowledge myself bound to pay, or cause to be paid, all costs which have accrued, or may accrue, in this action either to the opposite party or to any of the officers of this court, in pursuance of the laws of this State.

+-------------------------------+
                ¦“[Signed]¦Nora Newton          ¦
                +---------+---------------------¦
                ¦         ¦“Joseph I. Galloway.”¦
                +-------------------------------+
                

Certain defendants moved to dismiss the suit, alleging failure of plaintiff to file a sufficient bond for costs as previously ruled by the court. After hearing, the court held that plaintiff had not complied with such rule, but had filed another instrument identical in form with the one which had been previously adjudged insufficient in form, though with different sureties, and that same was not a lawful cost bond. The chancellor thereupon dismissed the suit, with prejudice and at plaintiff's costs. Such ruling is assigned as error.

Defendants urge that the bond for costs in this suit is governed by section 18 of the Guardian and Ward Act, Smith–Hurd Stats. c. 64, § 18, which provides among other things that any suit may be prosecuted by a minor, by his next friend, on such next friend entering into bond for costs and filing same in the court in which the suit is instituted.

We think the contention is correct and that the quoted section is controlling in the instant case.

The statute does not prescribe the form of such bond, and in such situation the rule appears to be that the instrument is sufficient in form if the object is distinctly and clearly stated. 15 Corpus Juris 211, § 513.

Here, said section 18 requires a bond for costs, and the obligors engage to pay all costs incident to the prosecution of the suit. This is the object and requirements of the statute, and it seems that the instrument clearly and distinctly avers such purpose and is therefore, as to form, sufficient within the rule.

Defendants further assert that it is not in law a bond for the reason that it was not executed under seal of the sureties, and cite some early decisions in support of the contention. The rule in this regard appears to have been much relaxed by the later adjudications.

In United States v. Linn, 15 Pet. 290, 315, 10 L.Ed. 742, it is stated: “The only material difference [between an instrument under seal, and one not], is, that, in the one case, the seal imports a consideration, and in the other, it must be proved.”

First National Bank v. Briggs' Assignees, 69 Vt. 12, 37 A. 231, 37 L.R.A. 845, 60 Am.St.Rep. 922, declares the rule: “Though an instrument in form a bond is without seals, it is a valid obligation, where executed on a sufficient consideration, and delivered as security.”

The Supreme Court has passed upon the proposition, in People v. Ford, 294 Ill. 319, at page 324, 128 N.E. 479, 481, whereinthe court ruled: “The requirement of a seal in the execution of documents by individuals has become a mere formality. It means nothing.”

Woodbury v. Ocean Acc. & Guar. Corporation, Ltd., 205 Ill.App. 387, at page 401, contains the following statement: “A seal, generally speaking, merely adds ‘factitious dignity’ to a document; ‘more conclusiveness, as mere evidence of the agreement of the parties.’ ”

We do not think that the omission of the seals of the obligors upon the instrument rendered it invalid. It is our conclusion that the document was valid, if the sureties were sufficient, and was a compliance with the court's order of May 18,...