Harding v. Kuessner

• Citation: 172 Ill. 125,49 N.E. 1001
• Parties: HARDING et al. v. KUESSNER.
• Decision Date: 14 February 1898
• Court: Supreme Court of Illinois

172 Ill. 125

49 N.E. 1001

HARDING et al.

v.KUESSNER.¹

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from appellate court, First district.

Action by Ferdinand Kuessner against George F. Harding and others, on an appeal bond. Judgment for plaintiff was modified and affirmed by the appellate court (70 Ill. App. 355), and defendants appeal. Affirmed.Wm. J. Ammen, for appellants.

Nelson Monroe, for appellee.

BOGGS, J.

The action below was debt by appellee on an appeal bond given by appellants to perfect an appeal to the appellate court for the First district from a judgment rendered in the superior court of Cook county against the appellant insurance company in favor of appellee. The circuit court entered judgment in favor of the appellee, which was affirmed by the appellate court on appeal, and the cause comes here by the further appeal of the appellants.

The objection the declaration does not allege a judgment was rendered in the suit in which the appeal bond was given is without force. The appeal bond is set out in haec verba in the declaration, and it appears from a recital in the condition of the bond that a judgment was rendered in favor of the appellee against the appellant company for a designated sum of money and costs of suit. It is familiar law the obligors in an appeal bond are estopped to deny the recitals of the bond.

Nor is the declaration defective in failing to aver the judgment of the appellate court affirming the judgment appealed from remained in full force, and that no appeal had been prosecuted therefrom. Such an averment is unnecessary. 2 Chit. Pl. *484, and note r; 1 Saund. Pl. & Ev. p. 330, and note 4. The judgment recited in the condition of the bond was in the sum of $1,462.50, and the allegation of the declaration is the judgment was affirmed by the appellate court for the sum of $1,072.22. It appeared from the transcript of the proceedings in the appellate court introduced in evidence by the appellee that a remittitur in the sum of $390.28 was entered in the appellate court, and the judgment appealed from was affirmed as set forth in the declaration. Appellants urge the obligation of the bond was the appellant insurance company would prosecute its suit with effect, and pay the judgment appealed from in the event such judgment was affirmed by the appellate court, and that the declaration did not aver, nor did the proof establish, the judgment appealed from was affirmed, but that in fact it was admitted the judgment was erroneous to the extent of the amount remitted, to wit, $390.28. The argument is, the judgment appealed from was not affirmed, and that for that reason appellants were not liable to answer to the appellee under the terms and conditions of the bond. The condition of the bond is as follows: ‘Now, therefore, if the said Firemen's Insurance Company shall...