People v. Steele
| Decision Date | 31 July 1880 |
| Citation | 7 Bradw. 20,7 Ill.App. 20 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, use, etc.,v.ANTHONY STEELE ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Randolph county; the Hon. W. H. SNYDER, Judge, presiding. Opinion filed August 13, 1880.
Mr. ALBERT N. SPRAGUE, for plaintiff in error; that the declaration fails to state a cause of action, cited Rev. Stat. 562; Murphy v. Summerville, 2 Gilm. 360; Greene County v. Bledsoe, 12 Ill. 267; Hibbard v. McKindly, 28 Ill. 240; Lemon v. Stevenson, 36 Ill. 45; Ill Cent. R. R. Co. v. McKee, 43 Ill. 119; Vining v. Leeman, 45 Ill. 246; McCarthy v. Chicago, 53 Ill. 38; C. & A. R. R. Co. v. Higgins, 58 Ill. 128; Safford v. Miller, 59 Ill. 205; Patrick v. Rucker, 19 Ill. 428; Albin v. Talbot, 46 Ill 424.
Sureties on an administrator's bond are not liable until a devastavit is first established against their principal: Reitz v. The People, 72 Ill. 435; People v. Admire, 39 Ill. 252.
Proceedings on a guardian's bond are similar to those on other penal bonds: Rev. Stat. 1874, 559.
The damages should have been assessed by a jury: Rev. Stat. 1874, 777.
The judgment should have been in debt for the amount of the bond, to be satisfied upon payment of a certain sum as damages: O'Conner v. Mullen, 11 Ill. 57; Toles v. Cole, 11 Ill. 562; Bowman v. Richardson, 21 Ill. 30; Odell v. Hole, 25 Ill. 204; Stose v. The People, 25 Ill. 600; Freeland v. Supervisors, 27 Ill. 303; Freeman v. The People, 54 Ill. 153; Caldwell v. Richmond, 64 Ill. 30; Maguire v. Town of Xenia, 54 Ill. 299.
The entry of judgment must be for a definite sum, expressed in dollars and cents: Freeman on Judgments, § 47; Lane v. Bommelman, 21 Ill. 143; Lawrence v. Fast, 20 Ill. 338; P. Ft. W. & C. R. R. Co. v. Chicago, 53 Ill. 80.
The judgment must not exceed the amount claimed in the ad damnum: Fourneir v. Faggott, 3 Scam. 347; Oakes v. Ward, 19 Ill. 46; Russell v. Chicago, 22 Ill. 283; Brown v. Smith, 24 Ill. 198; Altes v. Hinckler, 36 Ill. 266; Pierson v. Finney, 37 Ill. 29; Kelley v. Nat. Bank of Chicago, 64 Ill. 541.
Mr. WILLIAM HARTZELL and Mr. J. B. SIMPSON, for defendants in error; that the summons was sufficient, cited Chester, etc. Coal & R. R. Co. v. Lickiss, 72 Ill. 521.
The defect is fully cured by the statute: Rev. Stat. 1877, 130.
The errors in the declaration should have been raised by special demurrer, they cannot be raised for the first time in this court: Rev. Stat. 1877, 130; Tug Boat Dorr v. Waldron, 62 Ill. 221.
Damages were properly assessed by the court, no jury being demanded: Meyers v. Phillips, 72 Ill. 460; Phillips v. Kerr, 26 Ill. 213.
Ojection to the form of the judgment must be made in the court below: R. R. I. & St. L. R. R. Co. v. Steele, 69 Ill. 253; Bowden v. Bowden, 75 Ill. 111.
The distinction as to the form of action on sealed and unsealed instruments is now abolished: Adam v. Arnold, 86 Ill. 185.
The judgment is sufficiently formal as to expression of amount: Rothgerber v. Wonderly, 66 Ill. 390.
The remittitur cures the error of excess in the judgment: Pixley v. Boynton, 79 Ill. 351.
This was an action of debt in the name of The People, etc., for use of Nancy Vaughn as guardian of Edgar H. Vaughn against Anthony Steele and Marion E. Steele, upon a guardian's bond. Judgment was entered by default, and damages were assessed by the court at $544.71. The record, is brought here, and various errors are assigned--among others that the declaration is not sufficient to support the judgment.
The declaration avers the appointment of Anthony Steele as guardian of Edgar A. Vaughn, a minor under fourteen years of age, and that said guardian filed his bond, which was approved, with said Marion E. Steele as surety, conditioned that if said guardian should faithfully discharge the duties of his office according to law, and render a faithful account of his guardianship, when required by the county court, and comply with the said orders of said court, relative to the property of the minor, and pay to said minor all the money, etc., of the minor when he should be lawfully entitled thereto, or to any subsequent guardian of the minor, should the county court so direct, then said obligation should be void. It is further averred, that property of the value of $800 came to the hands of the guardian; that this was, by the guardian, converted to his own use, and that he did not pay the same to said Nancy Vaughn, guardian as aforesaid, though often requested. As a further breach, it is alleged that Steele did not at any time during his guardianship make a report to the county court, of the amount of the estate of the ward coming to his hands nor did he render any part of the same, to the minor, or any other person, authorized to receive it by means of which the said Nancy Vaughn, guardian of Edgar H. Vaughn, has sustained damages to a large amount, to wit: $500. Then follows the conclusion in the usual form, with profert of letters of guardianship of said Nancy Vaughn.
It is a familiar rule that all pleadings are to be taken most strongly against the pleader, for it is to be presumed that he will state his case as favorably to himself as possible. Now it is alleged here, that the funds of the minor were lawfully committed to the guardian, Steele, and that his bond was conditioned that he should faithfully discharge his trust, making an account when required by the court, and complying with other orders of the court relative to the matter and rendering the estate to the minor, when he should be entitled, or to any subsequent guardian, should the court so direct.
The first breach is that he did not pay to said Nancy Vaughn, but there is no averment that she is a subsequent guardian, or that there had been any direction of the court that the money should be paid to her. It is not alleged that...
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