Rehm v. Halverson

• Decision Date: 19 June 1902
• Citation: 197 Ill. 378,64 N.E. 388
• Parties: REHM v. HALVERSON.
• Court: Illinois Supreme Court

197 Ill. 378

64 N.E. 388

REHM

v.HALVERSON.

Supreme Court of Illinois.

June 19, 1902.

Appeal from appellate court, First district.

Action by Enock Halverson against William H. Rehm and another. From a judgment of the appellate court (94 Ill. App. 627) affirming a judgment for plaintiff, defendant Rehm appeals. Affirmed.Sherman & Burtt, for appellant.

John C. Edwards, for appellee.

This is a suit begun on April 12, 1899, by the appellee against the appellant and one Gabriel Zaccone upon an appeal bond dated February 21, 1898, executed by Gabriel Zaccone as principal, and William H. Rehm as surety, unto Enock Halverson, in the penal sum of $1,000, which bond was given upon an appeal to the circuit court from a judgment of restitution by a justice of the peace in a forcible detainer suit brought by appellee against said Zaccone, the principal in the bond. The jury rendered a verdict on January 22, 1900, assessing the plaintiff's damages at the sum of $200. Motion for new trial was entered by appellant and overruled. A motion in arrest of judgment was also made and overruled, and exception taken to the order overruling the motion. On February 3, 1900, judgment for $200 was entered upon the verdict of the jury in favor of the plaintiff below, the present appellee. Exception was taken to the judgment, and an appeal was prayed to the appellate court. The appellate court has affirmed the judgment of the circuit court, and granted a certificate of importance. The present appeal is from such judgment of affirmance.

On January 4, 1898, the appellee brought suit against Gabriel Zaccone before a justice of the peace, and on January 11, 1898, the justice rendered a judgment finding that the defendant therein, G. Zaccone, was unlawfully withholding from the plaintiff, Enock Halverson, the possession of the premises, described as No. 57 Grand avenue, in the city of Chicago. On the same day the defendant prayed an appeal, and his appeal bond was filed in the sum of $1,000. The case was taken to the circuit court of Cook county upon a bond approved by the justice, where, upon objections having been made to the bond, a new bond was given on February 21, 1898, signed by Zaccone and William H. Rehm, the appellant herein. The condition of the appeal bond so filed, and dated February 21, 1898, is as follows: ‘The condition of the above obligation is such that whereas the said Enock Halverson did on the 11th day of January, 1898, before Jarvis Blume, a justice of the peace for the county of Cook, recover a judgment against G. Zaccone for the restitution of certain premises described in the plaint, to wit, the entire building known as No. 57 Grand avenue, in the city of Chicago, county of Cook, and state of Illinois, and costs of suit, from which said judgment the said G. Zaccone has taken an appeal to the circuit court of Cook county and state of Illinois: Now, if the said G. Zaccone shall prosecute his appeal with effect, and pay all rent now due, and that may become due before the final termination of this suit, and all damages and loss which the said plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is taken is affirmed or appeal dismissed, then the above obligation to be void; otherwise to remain in full force and effect.’ Zaccone remained in possession of the part of the property hereinafter named from the time of the beginning of the forcible entry and detainer suit until August 1, 1898, a period of seven months. On November 21, 1898, the case was tried upon appeal in the circuit court before a judge and jury. The jury returned a verdict as follows: ‘We, the jury, find the defendant guilty of unlawfully withholding on January 4, 1898, a part of the premises described in the plaintiff's complaint filed in this case, to wit, the first floor and the one-half of the basement, containing one ice box, of the building No. 57 Grand avenue, in the city of Chicago.’Upon this verdict the circuit court entered the following judgment, to wit: ‘This case coming on to be heard upon defendant's motion heretofore entered herein for a new trial in this case, after argument by counsel and due deliberation by the court said motion is overruled and a new trial denied. Therefore it is considered by the court that the plaintiff do have restitution of the following described premises, being in the city of Chicago, county of Cook, state of Illinois, known and described as follows, to wit, the first floor and one-half of the basement, containing one ice box, of the building No. 57 Grand avenue, in the city of Chicago, county of Cook and state of Illinois, and that a writ of restitution do issue therefor, and that plaintiff do have and recover of and from the defendant, G. Zaccone, his costs and charges in this as well as in the court below expended, and have execution therefor.’ From the judgment so entered by the circuit court an appeal was taken to the appellate court, and there the judgment of the circuit court was affirmed, as will be seen by reference to the case of Zaccone v. Halverson, 92 Ill. App. 661. In the suit upon the appeal bond originally brought before a justice of the peace on April 12, 1899, no service was had on Gabriel Zaccone, the principal in the bond. Service was had on William H. Rehm, the surety, alone. Judgment was rendered on June 30, 1899, against William H. Rehm.

MAGRUDER, C. J. (after stating the facts).

1. Upon the trial below, appellant's counsel made a motion to dismiss this suit upon the appeal bond, as against the appellant, upon the ground that there was no service on Zaccone, and, further, upon the alleged grount that the bond was a joint liability, and that Zaccone, the principal in the bond, not being served, judgment could not be rendered against Rehm, the surety, alone. We are of the opinion that the judgment was properly taken against the appellant alone. Section 3 of chapter 76 of the Revised Statutes, in relation to joint rights and obligations, provides that ‘all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants.’ 2 Starr & C. Ann. St. (2d Ed.) p. 2321. In Coursen v. Browning, 86 Ill. 57, it was held that when suit is brought against the two obligors on an appeal bond, and only one is served with process, and no appearance is entered for the other, it is proper to take judgment against the one upon whom the service is had.

2. The original lease was a lease dated February 18, 1897, executed by the appellee to one Angelo Spano, leasing the premises known as Nos. 57 and 57 1/2 Grand avenue (being the corner of Union street), in Chicago, from March 1, 1897, until March 1, 1902. On February 20, 1897, Spano leased to Gabriel Zaccone the first floor and the one-half of the basement, containing one ice box (being a part of the building 57 Grand avenue), from March 1, 1897, to February 28, 1902. Zaccone was thus a subtenant under Spano, the original tenant. It is claimed by the appellant that neither the justice of the peace nor the circuit court had any jurisdiction to render a judgment in the forcible detainer suit against Zaccone alone, without joining in that suit Spano, who was the original lessee, and under whom Zaccone entered. For this reason it is urged that the circuit court did not have jurisdiction of the necessary parties in this suit on the bond. An instruction was asked by the appellant upon the trial below to the effect that there was such want of jurisdiction on account of the failure to join Spano with Zaccone in the forcible entry and detainer suit. This instruction was refused, and its refusal is assigned for error. The refusal of the instruction was not error, inasmuch as it ignores the fact shown by the evidence that appellee, the original lessor of Spano, had accepted from the latter a surrender of the lease before the forcible detainer suit was begun. It is not necessary to consider to what extent, if at all, Zaccone was deprived by such surrender of any rights, as between himself and Spano. It is sufficient that appellee found Zaccone in adverse possession of the premises. Appellee had the right to bring the forcible detainer proceedings against him alone. The fourth clause of section 2 of the forcible entry and detainer act provides that ‘when any lessee of the lands or tenements, or any person holding under him, holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise,’ the person entitled to the possession may be restored thereto in the manner provided in the act. 2 Starr & C. Ann. St. (2d Ed.) p. 1973...