Rudesill v. County Court of Jefferson County

• Decision Date: 30 June 1877
• Citation: 1877 WL 9582,85 Ill. 446
• Parties: JOHN RUDESILL et al.v.COUNTY COURT OF JEFFERSON COUNTY, for use, etc.
• Court: Illinois Supreme Court

85 Ill. 446

1877 WL 9582 (Ill.)

JOHN RUDESILL et al.

v.COUNTY COURT OF JEFFERSON COUNTY, for use, etc.

Supreme Court of Illinois.

June Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jefferson county; the Hon. TAZEWELL B. TANNER, Judge, presiding.

Mr. THOS. S. CASEY, for the appellants.

Messrs. POLLOCK & KELLER, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of debt, on an official bond of William D. Watson, as justice of the peace. The appellants, who were sureties on the bond, pleaded non est factum, verified by affidavit, upon which issue was taken, which was the only issue made by the pleadings. It is averred in the declaration, that Watson was, on the 5th day of April, 1870, elected a justice of the peace in Mt. Vernon township, Jefferson county; that on the 11th day of the same month he filed a bond as such justice, with Isaac Garrison as surety, which was approved; that Watson took the oath of office, received his commission, and entered upon the duties of his office. The declaration also avers that, on the 21st day of June, 1871, Isaac Garrison, upon application for that purpose, was released from the obligation of the bond, and Watson was required to file an additional bond as such justice; that the said Watson did, on the 22d day of June, 1871, file a new bond as justice, with the appellants as sureties, which was accepted, and filed by the county clerk of Jefferson county, which writing obligatory became and was the official bond of said William D. Watson, as justice of the peace, the substance of which is set out in the declaration. The declaration also contains the averment that, after the new bond was filed and accepted by the county clerk, the said Watson exercised and performed the duties of justice of the peace; that afterwards, and in the year 1873, a judgment was obtained before said justice for a certain sum of money, which he subsequently collected, and failed and refused to pay over, as required by the terms and conditions of his bond.

The averments of the declaration, that Garrison was released as surety of the justice, upon notice to the county clerk for that purpose, and that Watson, the justice, was required and did file a new bond as justice of the peace, on the 22d day of June, 1871, are admitted by the pleadings, and were not necessary to be proven, as the plea of non est factum only denied the execution by them of the bond described in the declaration. Pritchett v. The People, 1 Gilm. 525; Gardner v. Gardner, 10 Johns. 46.

The bond executed by appellants, upon which the action was brought, conformed to the requirements of sec. 11, chap. 59, Gross Stat. of 1869, p. 393, which was in force when it was executed. But after it had been executed by appellants, and when it was taken by the justice to the county clerk for approval, he, without the knowledge or consent of the sureties, inserted in the bond, after the recital that Watson was elected a justice of the peace in the Mt. Vernon precinct, Jefferson county, on the 5th day of April, 1870, the following words: “And given up by Isaac Garrison, his security, on the 21st day of June, 1871, and required to file new bond as such justice of the peace.”

This alteration in the bond by the county clerk, it is contended by appellants, was a material one, and rendered the bond void as to them, and, on account thereof, they are not liable for the acts or official misconduct of the justice. It is, no doubt,...