Hailman v. Buckmaster

• Decision Date: 31 December 1846
• Citation: 8 Ill. 498,1846 WL 3884,3 Gilman 498
• Parties: ELIZA S. HAILMANv.NATHANIEL BUCKMASTER.
• Court: Illinois Supreme Court

3 Gilman 498

8 Ill. 498

1846 WL 3884 (Ill.)

ELIZA S. HAILMAN

v.NATHANIEL BUCKMASTER.

Supreme Court of Illinois.

December Term, 1846.

DEBT, in the Madison circuit court, brought by the plaintiff in error against the defendant in error, and heard before the Hon. GUSTAVUS P. KOERNER, at the October term, 1846, on a demurrer to a plea in abatement. The demurrer was overruled, and a judgment for costs rendered in favor of the defendant below.

The facts and the subject matter of the plea are stated in the opinion of the court.

D. J. BAKER, for the plaintiff in error.

1. The plea, to be good, must show the writ of error and supersedeas to have been sued out and allowed prior to the commencement of this suit, that the writ of error has been allowed, and that all the steps and pre-requisites prescribed by statute in such case to have been complied with and taken to make a writ of error a supersedeas. 2 Johns. Cases 312; Jenkin v. Pepoon, 1 Salk. note a 322; 1 Strange, 476; 2 T. R. 41; 1 Scam. 531-2; 5 T. R. 78.

Pleas in abatement are required to be drawn with the greatest accuracy and precision. 1 Chitty's Pl. 491. Great accuracy is also necessary in the form of the plea as to the commencement and conclusion which are said to make the plea. 1 do. 476; 3 Saund. 209, c. d. note f.

The pendency of a writ of error is no plea allowed by law, but the proper course is to move the court to stay proceedings on terms until the case on writ of error is decided, and especially so when the writ of error is sued out after suit brought on the judgment or against the bail. 1 Com. Dig. 115; 1 Stra. 419; 1 Wils. 120; Willes 271; 2 T. R. 78-9; 3 do. 436; 5 do 714; 2 Bos. & Pul. 329.

The judgment in this case should have followed the decision upon the demurrer, and upon overruling the plaintiff's demurrer to the defendant's plea, should not have been for the costs against the defendant, but against the plaintiff. Plaintiff may bring writ of error to reverse his own judgment. 3 Burr. 255; 2 Tidd's Pr. 1134, 1146, 1165; 3 Scam. 321.

The opinion of the court was delivered by TREAT, J.

An action of debt was pending in the Madison circuit court, in which David and Eliza S. Hailman were plaintiffs, and James Semple was defendant. In August, 1838, the writ was enjoined by Semple, who, with Buckmaster as his security, executed a bond to the plaintiffs in the penalty of $6100, conditioned for the payment of the amount to be found due the plaintiffs. At the October term, 1845, the injunction was dissolved, and a judgment entered against Semple for $2402 debt, and $1400 damages. On the 9th of October, 1846, Eliza S. Hailman, the surviving obligee, instituted an action of debt against Buckmaster and declared on the injunction bond. On the 30th of the same month, Semple sued out a writ of error on the judgment rendered in the original case, and obtained a supersedeas thereon. Buckmaster pleaded the pendency of this writ of error in abatement of the action on the bond. The court overruled a special demurrer to the plea, and rendered a judgment that the writ be quashed, and that the plaintiff recover her costs. To reverse that judgment, she prosecutes a writ of error.

As a matter of principle it seems clear, that a plaintiff ought not to be permitted to prosecute a second action to recover the same demand, while the proceedings on the judgment in the first case are stayed by a writ of error operating as a supersedeas. He has ample security for the payment of the judgment in case it is affirmed. The second action is therefore unnecessary, and may possibly be regarded as vexatious. The law will afford the defendant an effectual remedy. The common and now almost universal practice in such cases, is to apply to the court in which the second action is pending, for an order to stay the proceedings in the case, until there is a determination of the writ of error. The court will always grant the application when a proper case is presented. 1 Tidd's Pr. 530; Christie v. Richardson, 3 D. & East 78; Myer v Arthur, 1 Stra. 419; Cressy v. Kell, 1 Wils. 120. This practice is a very convenient one, and fully protects the interests...