Herrick v. Swartwout

• Decision Date: 30 June 1874
• Citation: 72 Ill. 340,1874 WL 8819
• Parties: EDWARD H. HERRICK et al.v.HENRY L. SWARTWOUT
• Court: Illinois Supreme Court

72 Ill. 340

1874 WL 8819 (Ill.)

EDWARD H. HERRICK et al.

v.HENRY L. SWARTWOUT

Supreme Court of Illinois.

June Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marion county; the Hon. AMOS WATTS, Judge, presiding.

Mr. HENRY C. GOODNOW, for the appellants.

Mr. B. B. SMITH, and Mr. W. R. HUBBARD, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The objection that the declaration does not show that the bond in suit was taken and approved as the appeal bond of the defendants, in the circuit court of Cook county, comes too late. By failing to demur, and pleading to the merits of the declaration, the defendants waived the objection, and it can not now be urged as error. Evans v. Lohr, 2 Scam. 514; Wallace v. Curtiss, 36 Ill. 158; Commercial Insurance Co. v. Treasury Bank, 61 Id. 483; Lusk v. Cassell, 25 Id. 209; Nelson et ux. v. Borchenius, 52 Id. 236. Although the bond was required by statute to be filed in the office of the clerk of the court from which the appeal was prayed, yet it is expressly provided by the same section, that “the obligee in such bond may at any time, on a breach of the condition thereof, have and maintain an action at law as on other bonds.” 2 Gross, 291, sec. 67. The suit, therefore, is properly brought on the bond, and not on the record; and nul tiel record is not a proper plea to the action. Arnott et al. v. Friel, 50 Ill. 175. The plea of non est factum not being sworn to, the execution of the bond, as declared on, was not put in issue. Frye v. Menkins, 15 Ill. 339; Home Flax Co. v. Beebe, 48 Id. 138. No error is, therefore, perceived in admitting the bond in evidence.

The objection that the record of the judgment in this court, read in evidence, should have been rejected, because it varied from the judgment described in the declaration, even conceding that the variance claimed actually existed, is fully answered by Nowlin v. Bloom, Breese, 138: “The judgment was not the foundation of the action, but was only brought in collaterally, to prove another fact, and, for that purpose, was sufficiently described in the declaration.” See, also, 1 Greenleaf on Evidence, sec. 70.

It was unnecessary to introduce a copy of the record of the judgment appealed from, as it is recited in the condition of the bond, and the defendants were estopped from denying its existence. Smith v. Whitaker, 11 Ill. 418; Arnott et al v. Friel, supra.

The only remaining objection insisted upon is, that the court erred in overruling the demurrer to the 5th plea, in which it is alleged that an execution, issued upon the judgment appealed from, was “levied...