Schott v. Youree

• Citation: 31 N.E. 591,142 Ill. 233
• Parties: SCHOTT v. YOUREE.
• Decision Date: 18 June 1892
• Court: Supreme Court of Illinois

142 Ill. 233

31 N.E. 591

SCHOTT

v.YOUREE.¹

Supreme Court of Illinois.

June 18, 1892.

Error to appellate court, fourth district.

Action by Charles S. Youree, late coroner of Madison county, for the use of Timothy Gruaz, against Martin J. Schott, on a replevin bond executed by him as surety for J. Ryhiner & Co. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant brings error. Affirmed.

A. W. Metcalfe, for plaintiff in error.

Wise & McNulty, for defendant in error.

SCHOLFIELD, J.

This appeal is from a judgment of the appellate court of the fourth district, affirming a judgment of the circuit court of Madison county in favor of Charles S. Youree, late coroner of that county, for the use of Timothy Gruaz, against Martin J. Schott, on a replevin bond executed by him as surety for J. Ryhiner & Co. as principals.

1. The bond is executed to ‘Charles S. Youree, coroner of the county of Madison, in the state of Illinois, and to his successors in office, executors, administrators, and assigns.’ It is contended that, inasmuch as Youree did not succeed himself in office, this suit is improperly brought, and there is a variance between the bond described in the declaration, which omits the words ‘and to his successors in office,’ and that offered in evidence. Public officers can maintain an action, as successors, only when expressly authorized so to do by statute. ‘By the common law a suit on a bond payable to one and his successors or assigns can be maintained only by the obligee during his life, and by his executors or administrators after his death.’ There are exceptions to the rule, but they are not pertinent here. Stevens v. Hay, 6 Cush. 229; Lord v. Lancey, 21 Me. 468; Ferebee v. Sanders, 3 Ired. 360; Hoxie v. Weston, 19 Me. 322. Our statute simply requires that before the execution of any writ of replevin the plaintiff, or some one on his behalf, shall give to the sheriff, constable, or other officer, bond, etc. Chapter 119, Rev. St. 1874, tit. ‘Replevin,’ § 10. Section 11 requires that he shall return the bond so taken to the clerk, etc. And section 25 provides that ‘if at any time the condition of the bond required by section 10 of this act shall be broken, the sheriff, constable, or other officer, or plaintiff, in the name of the sheriff, to his own use, as the case may be, may sue and maintain an action on such bond,’ etc. There is therefore, plainly, no authority to make the bond payable to the successor, and no authority for a successor to bring suit on a bond taken by his predecessor. The word ‘successors' is therefore, in that connection, without legal meaning or effect, and mere surplusage that the pleader rightly disregarded. 1 Chit. Pl. 262, *263. And so in our opinion the suit was properly brought, and there was no variance between the allegations and the proofs in the respect contended.

2. The writ of replevin was issued against George Hotz, sheriff of Madison county, and Jacob Brunsch weilin, who was the sheriff's custodian of the property, and it is contended that there is a variance between the allegations and the proofs because the suit is brought for the use of Timothy Gruaz instead of for that of George Hotz. But the bond in evidence and the bond declared on are precisely the same in legal effect. So much of the declaration as alleges for whose use the suit is brought is no part of the count in which the bond is described and its breach alleged. That allegation does not present an issuable fact, and no evidence is therefore necessary to support it; and none is admissible in denial of it. The statute provides (section 25, supra) that the action on the bond may be maintained, by the officer taking the bond, ‘for the recovery of all such damages and costs as may have been sustained in consequence of the breach of the condition.’ Necessarily, then, the defendant may, on the trial, resist the recovery of damages and costs, on the ground that they have not been sustained in consequence of the breach of the condition. The officer taking the bond, and who brings the suit for the breach of its condition, legally represents all parties beneficially interested in recovering in such suit, and all legal defenses that may be interposed as against any interest must be interposed to his suit. The statement of the use for which the suit is brought is merely to enable the court to know who is equitably entitled to control the suit; and if no use were stated, or if it were inaccurately stated, the duty of the plaintiff to distribute the proceeds of the judgment, being prescribed by statute, would be wholly unaffected. He must, whatever he should state the use to be, distribute the proceeds of the judgment to those injured by the breach of the bond, and, in the case of several being thus injured, in the relative proportion of their respective injuries. But since the defendant litigates all questions with the party bringing the suit, that is, interposes all defenses that he may have as against any and every recovery because of a breach of the bond, in the suit brought by the officer taking the bond, it is, manifestly of no concern to him how the proceeds of the judgment shall be distributed. Buckmaster v. Beames, 4 Gilman, 443;Atkin v. Moore, 82 Ill. 240. But it seems to be supposed by counsel for appellant that Blatchford v. Boyden, 122 Ill. 657, 13 N. E. Rep. 801, lays down a different rule. This is a misapprehension, as an examination of that case will clearly show. In that case, as in this, the property was replevied from the sheriff, who held it on execution. One of the executions under which the sheriff held the property was in favor of Robert E. Jenkins, assignee of Josiah R. Butler. Jenkins and the other plaintiff in execution were made defendantswith the sheriff to the replevin suit, and the bond executed to the coroner upon making the replevin assumes to describe who are defendants in the replevin suit, but it therein describes Jenkins as assignee of Josiah R. Barker. In the introductory part of the declaration in the suit upon the replevin bond it is said the suit is brought for the use of the sheriff and the plaintiffs in execution, naming each, and the count upon the bond describes it as it was made, but alleges that it is incorrectly therein recited, by mistake, that Jenkins is assignee of Barker,-that, in truth, he is assignee of Butler. It was objected that the bond described in the count and that offered in evidence were not in legal effect the same bond; and what was said in the opinion in that case, which counsel refer to as pertinent here, had reference to that question alone. There was no question of any kind in regard to the use alleged in the introductory part of the declaration. The opinion shows that Jenkins was unnecessarily made a defendant in the replevin suit, and his name was unnecessarily mentioned in the replevin bond; that the writ of retorno habendo could only be executed by returning the property to the possession of the sheriff, whence it was taken by the writ of replevin, and by whom it must be applied upon the executions by virtue of which he had held its possession; and it was afterwards, among other things, added: ‘Jenkins and the other plaintiffs in execution are but nominal parties, at most, and their being joined or not as beneficial plaintiffs can in no wise prejudicially affect appellant.’ And this is in entire accord with what we had before herein said.

3. It appears that the plaintiffs in the replevin suit filed a petition in the circuit court of Madison county praying for a change of venue, in that suit, to some other county, on account of the prejudice of one of the judges of that judicial district who usually presided during terms of the court in that county; that, subsequently, it was agreed between the counsel of record in that case that the case should be tried in that county at some future time, by another judge of the district, who was named; that subsequent to that agreement, the cause was at one or more terms of the court continued generally, and finally, at a subsequent term of court, an order of the court was entered of record that the venue be changed to the circuit court of Jersey county, and that the records, etc., be transmitted to the Jersey circuit court for trial. The records were transmitted to the Jersey circuit court pursuant to the order, and subsequently the suit was dismissed by that court for want of prosecution. It is contended that, under the plea of nul tiel record, the record of this change of venue and dismissal of the case for want of prosecution was not admissible in evidence in this suit. This does not present the question whether the circuit court erred in ordering that the venue be changed, for that record is not before us by appeal on writ of error. This is an entirely different suit, and that record is only collaterally brought before us as evidence on a question arising in this suit. Whether the evidence was competent for the purpose for which it was offered is the only question, and its materiality not being questioned, and it clearly appearing that the court had jurisdiction of the persons of the plaintiffs in the replevin suit and of the subject-matter of the order, the record was properly admitted in evidence. Wimberly v. Hurst, 33 Ill. 166;Graceland Cemetery Co. v. People, 92 Ill. 619;Cooper v. Reynolds, 10 Wall. 308. The surety in the replevin bond (appellant here) contracted with reference to the action of his principals in prosecuting the replevin suit, and he is therefore concluded, as are his principals, by the judgments and orders made in that suit, so far as the present question is...