Moses v. Royal Indem. Co.

Citation114 N.E. 554,276 Ill. 177
Decision Date21 December 1916
Docket NumberNo. 11007.,11007.
PartiesMOSES v. ROYAL INDEMNITY CO.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Municipal Court of Chicago; Wm. N. Gemmill, Judge.

Action by Albert Moses against the Royal Indemnity Company. From a judgment in the municipal court of Chicago for plaintiff, defendant appeals. Affirmed.

Lawton & Peterson, of Chicago, for appellant.

Samuels & Samuels, of Chicago, for appellee.

CARTER, J.

This was a suit brought by appellee in the municipal court of Chicago against the Royal Indemnity Company and Lazar Jacobsohn upon a bond of $1,000, to stay executionon a judgment obtained by appellee in the municipal court of Chicago against Lazar Jacobsohn for $500 and costs of suit. A writ of error was sued out from the Appellate Court to review such judgment in the municipal court, and the bond in question was filed, under the provisions of section 23 of the Municipal Court Act, to stay execution upon said judgment for ninety days. The Royal Indemnity Company first filed a motion to strike appellee's statement of claim on the ground of its insufficiency. This motion was overruled, and thereafter the company filed an affidavit of merits, which on motion of the appellee was stricken. The company elected to stand by such affidavit, and the court gave judgment for $500 and costs for appellee on default. This appeal was taken by the Royal Indemnity Company directly to this court from that judgment on the ground that the validity of section 23 of the Municipal Court Act is involved.

It is insisted in the brief of counsel for appellee that the validity of section 23 of the Municipal Court Act cannot be raised here because the question was not raised on the trial in the municipal court and was not covered by the assignment of errors in this court. Masonic Fraternity Temple Ass'n v. City of Chicago, 217 Ill. 58, 75 N. E. 439;Griveau v. South Chicago City Ry. Co., 213 Ill. 633, 73 N. E. 309. Since appellee's brief was filed, counsel for appellant have obtained leave from this court to assign errors here raising the constitutional question. A case cannot be brought by appeal or writ of error directly to this court as involving the validity of a statute unless the record shows that the question was in some way presented to the trial court for its decision. Lee County v. Commissioners of Highways, 164 Ill. 574, 45 N. E. 983;Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. McGrath, 195 Ill. 104, 62 N. E. 782;Cummings v. People, 211 Ill. 392, 71 N. E. 1031. Nothing is found in the motions or affidavit of merits that questions, in terms, the constitutionality of said section 23 of the Municipal Court Act. The affidavit of merits, however,filed by appellant, states, among other things, that the trial court was without power or jurisdiction to stay said execution and that therefore said bond was without consideration and null and void. Under that objection the constitutionality of said section might have been raised in the trial court (Wolf v. Hope, 210 Ill. 50, 70 N. E. 1082;Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035,1 L. R. A. [N. S.] 215, 108 Am. St. Rep. 196,3 Ann. Cas. 487;Shepherd v. City of Sullivan, 166 Ill. 78, 46 N. E. 720), and counsel for appellant insist that it was so raised.

[4] In our view of the law as applied to this case we do not deem it necessary to consider or decide whether section 23 of the Municipal Court Act is unconstitutional. The consideration for the bond in the case at bar is stated in the bond itself, and the obligors not only received the full consideration of the stay of execution, but also the opportunity of having the said judgment reviewed in the Appellate Court, which resulted in a judgment against appellant, as set forth in the statement of claim. This is not denied in any way on this record by appellant. The bond was voluntarily executed, the effect of which was to stay the proceedings on the judgment. This was sufficient legal consideration. The general rule is that by executing such a bond, and thereby obtaining the contemplated benefits pending the disposition of the appeal, the parties may estop themselves from asserting certain defenses to liability upon the bond; the appellant having obtained by such bond all that he stipulated for therein. 4 Corpus Juris, 1269, 1270, and cited cases. In the case of Daniels v. Tearney, 102 U. S. 415, 421, 26 L. Ed. 187, a question similar to that raised here was involved. It was conceded there that the law in question was unconstitutional. The court said:

‘It is well settled as a general proposition * * * that where a party has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense. * * * In such cases the principle of estoppel applies with full force and conclusive effect.’

See, also, Stevenson v. Morgan, 67 Neb. 207,93 N. E. 180,108 Am. St. Rep. 629;Board of Children's...

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18 cases
  • Heine v. Degen
    • United States
    • Supreme Court of Illinois
    • 5 Febrero 1936
    ...question unless the record shows that such question was in some way presented to the trial court. Moses v. Royal Indemnity Co., 276 Ill. 177, 178, 114 N.E. 554. The appellants filed their motion in the trial court on July 21, 1931, above referred to. This motion was overruled and the case w......
  • Zehender & Factor, Inc. v. Murphy
    • United States
    • Supreme Court of Illinois
    • 21 Marzo 1944
    ......McNeil & Higgins Co. v. Neenah Cheese & Cold Storage Co., 290 Ill. 449, 125 N.E. 251;Moses v. Royal Indemnity Co., 276 Ill. 177, 114 N.E. 554;Cummings v. People, 211 Ill. 392, 71 N.E. 1031. ......
  • Schweitzer v. Westminster Investments
    • United States
    • California Court of Appeals
    • 13 Diciembre 2007
    ......(See generally 11 C.J.S. (1995) Bonds, § 16, pp. 13-14; Moses v. Royal Indemnity Co. (1916) 276 Ill. 177, 180, 114 N.E. 554.) Unlike other statutory bonds, 9 ......
  • Phelps v. Bd. of Appeals of City of Chicago
    • United States
    • Supreme Court of Illinois
    • 10 Junio 1927
    ......Neenah Cheese Co., 290 Ill. 449, 125 N. E. 251;People v. Rawson, 278 Ill. 654, 116 N. E. 123;Moses v. Royal Indemnity Co., 276 Ill. 177, 114 N. E. 554;Wennersten v. Sanitary District, 274 Ill. 189, ......
  • Request a trial to view additional results

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