Mix v. the People
| Decision Date | 30 September 1877 |
| Citation | 86 Ill. 329,1877 WL 9726 |
| Parties | JAMES MIX et al.v.THE PEOPLE, for use, etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kankakee County; the Hon. N. J. PILLSBURY, Judge, presiding.
Mr. STEPHEN R. MOORE, for the appellants.
Mr. DANIEL H. PADDOCK, for the appellees.
This was an action of debt, on a bond executed by appellants in prosecuting an appeal from a judgment for delinquent taxes, in the circuit court, to this court.
The declaration contains two counts, in both of which breaches of the condition of the bond are specially assigned. Appellants pleaded nil debet, non est factum, general performance, and three special pleas numbered respectively 4, 5, and 6. Demurrer was sustained to all of the pleas, except that of non est factum; and the questions for our consideration arise upon this ruling of the court.
It is conceded nil debet was not a proper plea, and that the demurrer to it was properly sustained.
The plea of general performance was clearly bad. A particular breach of the bond having been assigned in the declaration, the plea should have answered it. Bradley v. Osterhoudt, 13 Johns. 404; The People v. McHatton, 2 Gilm. 731.
The substance of the special plea numbered 4 is, that the judgment appealed from was against the lands, and was not for the payment or recovery of money against the principal obligor in the bond, and that the conditions of the bond were not directed by the court, nor are they in accordance with the requirements of the statute.
The bond was voluntarily executed. It was executed in consideration of the appeal, and the effect of the appeal was to stay proceedings on the judgment. This was a sufficient legal consideration; and, since the execution of the bond was neither prohibited by statute nor is contrary to the policy of the law, it is a good common law obligation. As we said in Courson v. Browning, 78 Ill. 210, Mix “used this appeal bond to procure a trial in this court, and his security enabled him to do so by joining in its execution; and, having obtained all the benefits of the bond, they should be estopped from denying that it is a binding obligation, unless it contravenes some statute or some rule of public policy, neither of which was done by the execution of this bond.” In George v. Bischoff, 68 Ill. 236, the same character of objection was urged against a recovery on an appeal bond, and it was overruled upon the ground that it was, at all events, binding as a common law obligation. See, also, Pritchett et al. v. The People, 1 Gilm. 525.
The plea was bad, and the demurrer was properly sustained to it.
The special plea numbered 5 presents the question whether, the judgment in the circuit court being against the lands only, the obligors can be made to respond until the remedy against the lands is exhausted.
It would seem sufficient that the undertaking of the parties is not to pay the judgment upon condition it should not be satisfied upon the sale of the lands, but that the undertaking was to be void upon condition that Mix should prosecute his appeal with effect, and should pay whatever costs, judgment and damages should be awarded against the lands, etc., in case judgment should be affirmed--otherwise it was to remain in full force and effect. We know of no authority or reason for importing other and different conditions into the obligation than those placed there by the parties themselves.
The fact that the judgment is in rem can make no difference, since the law no more prohibits parties from making contracts and regulating their terms in regard to such judgments than it does in regard to judgments in personam. Suppose there was a remedy here to collect the judgment by selling the lands, so there is a remedy by execution to collect judgments in personam. But it surely was never heard of as a defense to an appeal...
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