Mcwilliams v. Morgan

• Decision Date: 30 September 1873
• Citation: 1873 WL 8547,70 Ill. 62
• Parties: DAVID MCWILLIAMS et al.v.RICHARD P. MORGAN, JR.
• Court: Illinois Supreme Court

70 Ill. 62

1873 WL 8547 (Ill.)

DAVID MCWILLIAMS et al.

v.RICHARD P. MORGAN, JR.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.

This was an action of debt, by Richard P. Morgan, Jr., against David McWilliams and James H. Hagerty, upon an appeal bond.The opinion of the court contains a sufficient statement of the case.

Mr. L. E. PAYSON, for the appellants.

Mr. H. GARDNER, Jr., and Messrs. H. & J. D. SPENCER, for the appellee.

Mr. JUSTICE SCHOLFIELDdelivered the opinion of the Court:

We deem it necessary to notice but a single point in this case: Appellants sued out a temporary injunction against appellee, enjoining him from using, etc., certain real estate.The court below, upon hearing, rendered a decree dissolving the injunction, and from this decree appellants appealed to this court, and for that purpose executed the bond upon which this suit is brought.The decree of the court below was here affirmed, but no order or judgment was rendered against appellants, except that of affirmance and the payment of costs.

Upon the trial of the present case in the court below, evidence was given and judgment rendered, against appellants' objections, for the rental value of the real estate, the use of which was enjoined, pending the appeal.This, we think, was erroneous.

The statute in force when the bond was executed is as follows: “Appeals shall be allowed to the Supreme Court from all decrees, judgments and orders of inferior courts from which writs of error might be lawfully prosecuted; and in granting appeals, inferior courts shall direct the condition of appeal bonds, with reference to the character of the decree, judgment or order appealed from.”Laws of 1865, sec. 3.That it would, under this statute, have been competent for the court below, in allowing the appeal, to have required that the bond should be given to secure the rental value of the real estate, as well as the costs and expenses of the suit, is clear; but it is equally clear that this was not done.The condition of the bond is:

“Now, if said McWilliams and Hagerty shall duly prosecute said appeal, and shall pay the amount of said judgment, costs, interest and damages rendered, and to be rendered, against them, in case said decree shall be affirmed in said Supreme Court, then this obligation to be void,” etc.

No judgment was rendered, either in the circuit court or in this...