Mcconnel v. Swailes

• Decision Date: 31 December 1840
• Citation: 1840 WL 3010,3 Ill. 571,2 Scam. 571
• Parties: MURRAY MCCONNEL, impleaded with ALFRED W. PARSONS.v.THOMAS SWAILES.
• Court: Illinois Supreme Court

2 Scam. 571

3 Ill. 571

1840 WL 3010 (Ill.)

MURRAY MCCONNEL, impleaded with ALFRED W. PARSONS.

v.THOMAS SWAILES.

Supreme Court of Illinois.

December Term, 1840.

THIS cause was heard in the court below, at the November term, 1839, before the Hon. William Thomas.

M. MCCONNEL and J. A. MCDOUGALL, for the appellant.

J. LAMBORN, for the appellee.

BREESE, Justice, delivered the opinion of the court: ¹

Thomas Swailes, the appellee in this case, commenced an action of debt in the circuit court of Morgan county, at the October term, 1838, against Alfred W. Parsons and Murray McConnel, upon a bond executed by them, on obtaining a certiorari, to bring up a judgment rendered before a justice of the peace, against Parsons, and in favor of Swailes.

The summons was duly served upon both defendants, and the declaration, in the usual form, assigned as a breach of the condition of the bond, the non-payment of the debt and costs, recovered before the magistrate, and concludes with a prayer of damages laid at twenty-five dollars. To this declaration there was a demurrer by McConnel alone, which was sustained, and leave given to amend. To the amended declaration a demurrer was also filed by the same party and judgment rendered thereon for the plaintiff, against McConnel only, for the debt in the declaration mentioned, and an order entered directing the clerk to assess the damages, which he did, to fifty-nine dollars and ninety-six cents. The final judgment is entered up in the following form: “Therefore it is considered and adjudged by the court, that the plaintiff recover of the defendant McConnel, his debt and damages aforesaid, in manner and form aforesaid assessed, and also his costs herein expended.”

An appeal was prayed for and allowed from this judgment, and the following errors are assigned, as appearing on the record:

The court erred, First, In rendering judgment against McConnel alone, and not against McConnel and Parsons, both being sued, and both served with process;

Secondly, In rendering a judgment against McConnel, for one hundred dollars debt, and for fifty nine dollars and ninety-six cents damages;

Thirdly, In rendering the judgment in manner and form as set forth in the record;

Fourthly, In overruling the demurrer of McConnel to the amended declaration; and

Fifthly, In deciding that the dismissal of an appeal, or writ of certiorari, was an affirmance of the judgment in the circuit court.

The second and third errors assigned run into each other, as do also the fourth and fifth, and will be considered accordingly.

This court does not entertain a doubt, but that the dismissal of an appeal, or certiorari, is equivalent to a regular, technical affirmance of the judgment, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor. The bond given in such case, is conditioned “to pay the debt and costs, in case the judgment shall be affirmed, on the trial of the appeal.” (R. L. 395; Gale's Stat. 409.) What is the object of this requirement, and what its meaning and intention? Manifestly to secure the opposite party in his debt and costs, in case the judgment shall not be reversed; in case he shall be, in the circuit court, the successful party. By a dismissal of the appeal, either by the court, or by the act of the appellant himself, the appellee is the successful party; he has not lost what he...