Safford v. Miller

• Decision Date: 30 June 1871
• Citation: 59 Ill. 205,1871 WL 8022
• Parties: ALFRED B. SAFFORDv.ROBERT MILLER et al.
• Court: Illinois Supreme Court

59 Ill. 205

1871 WL 8022 (Ill.)

ALFRED B. SAFFORD

v.ROBERT MILLER et al.

Supreme Court of Illinois.

June Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Mr. W. J. ALLEN and Messrs. GREEN & GILBERT, for the appellant.

Messrs. MULKEY, WALL & WHEELER, for the appellees.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was an action of debt, brought in the Alexander county circuit court, by appellees against appellant, upon the joint and several bond of William Barker, W. P. Halliday and appellant, in the penal sum of $1000, taken on the 20th day of May, 1864, the condition of which is as follows:

“The condition of the above obligation is such that, whereas the above bound William Barker has prayed for and obtained a writ of injunction from the circuit court of the county of Alexander, and State of Illinois, restraining and enjoining the said John Cheek and Robert W. Miller from proceeding further in the prosecution of certain suits at law, commenced respectively by said John Cheek and Robert W. Miller, against said Barker, in the said circuit court of Alexander county, Illinois, and which said suits are now pending and undetermined in said court, until the said court shall make other order to the contrary.

Now, if the said William Barker shall pay, or cause to be paid, to the said John Cheek and Robert W. Miller all such damages as they may sustain by reason of the issuing of said injunction, and also such costs and damages as may be awarded against the said complainant by the said court, in case the said injunction herein granted shall be dissolved, then this obligation shall be null and void: otherwise to remain in full force and virtue in law.”

The declaration alleges the filing of the bond on the day and year aforesaid, and that afterwards such proceedings were had in the cause, in and by said circuit court, on to wit: the 8th of December, 1866, at the November term of said court, upon a final hearing of the cause in which the bond was given, that Barker's bill was dismissed by the court; from which decree Barker prayed and perfected an appeal to the Supreme Court, and on the 9th day of June, 1870, at the June term of the Supreme Court, held at Mount Vernon, the said appeal was dismissed by the court at the costs of appellees, and procedendo awarded. Several breaches were assigned:

First. That plaintiffs were put to great trouble and expense in employing solicitors in defending against said bill of complaint; that they paid to solicitors, and for costs and expenses, $500.

Second. That Miller was put to great trouble and expense, and paid to solicitors, and for costs and expenses, a like sum.

Third. That Cheek was put to great trouble and expense, etc., and paid to solicitors, and for costs and expenses, a like sum.

Fourth. That at the time of suing out the injunction, said Robert W. Miller was the owner of certain premises (describing them,) upon which was a cottage and other improvements, etc., and, as such owner, was lawfully entitled to the possession thereof, and to receive the rents, issues and profits, amounting to $100 per month; that, by reason of the injunction, he was kept out of the possession of the premises until the 10th of December, 1866, and deprived of the rents, issues and profits thereof for thirty months, amounting to $3000, which had not been paid by Barker.

The fifth and sixth breaches were, substantially, like the fourth. The seventh, that a large amount of costs had been awarded to plaintiffs against Barker, to wit, $100, which he had not paid.

Several pleas were filed, to the second and third of which a demurrer was sustained, upon which appellant obtained leave to amend his second plea, and to file additional pleas, under which the second plea was amended and additional pleas filed, to the number of twelve. Upon the pleas to the first and second assignments of breaches issue was joined. To the others, demurrers interposed.

The court overruled the demurrer to the fifth and tenth additional pleas, and sustained it as to the second amended plea, and the fourth, sixth, seventh, eighth, ninth, eleventh and twelfth additional pleas. Appellant elected to abide by his pleas; by leave of the court, withdrew his first original and the first, second, third and fifth additional pleas, including those upon which issue had been joined; whereupon his default was taken, and the court assessed entire damages upon all the counts or assignments of breaches to $1000, and gave judgment.

The defendant brought the case to this court by appeal, and assigns for error the sustaining of the demurrer to said pleas, and the rendition of the judgment aforesaid.

The fourth additional plea was to the fourth assignment of breaches, and was as follows: “And for a further plea in this behalf as to the said fourth breach in said declaration mentioned, said defendant, by leave, etc., says actio non, because, he says, that at the time of the suing out of and service of said supposed writ of injunction, said Robert W. Miller was not lawfully entitled to the possession of the said premises in said fourth breach described, and to have, receive and enjoy the rents, issues and profits thereof, as alleged in said fourth breach; and of this said defendant puts himself upon the country.”

The sixth additional plea, and to the same breach, after the formal part, was: “because he says that each and all the matters and things in said fourth breach...