Simons v. Waldron
| Decision Date | 30 September 1873 |
| Citation | 70 Ill. 281,1873 WL 8597 |
| Parties | SAMUEL SIMONSv.ASA D. WALDRON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.
This was an action of debt, by Asa D. Waldron and others against Joseph Moffitt and Samuel Simons, upon an appeal bond. The trial resulted in a verdict and judgment in favor of the plaintiffs for $1260.50, from which the defendant, Simons, appealed.
Messrs. GARRISON & DORAN, for the appellant.
Mr. NORMAN C. PERKINS, and Mr. J. HENRY TRUMAN, for the appellees.
The record in this case has been carefully examined, and we are unable to detect any error for which the judgment ought to be reversed.
The action is upon an appeal bond, given in the case of The Tug Boat E. P. Dorr v. Waldron et al., which was brought to this court at the September term, 1871, and was then affirmed (62 Ill. 221.) The original bond was destroyed by fire, at the time the court house in Chicago was burned, in 1871. Appellant pleaded non est factum, which plea was verified by affidavit. Upon that issue a trial was had, which resulted in a verdict against appellant, as security on the bond, the principal, Moffit, not having been served with process.
The objection, the court admitted improper evidence, is wholly untenable.
The rulings of the court, in the admission and exclusion of evidence, were quite as liberal in favor of appellant as he had any right to claim or could expect. Indeed, we are unable to perceive how he was prejudiced, in that regard, by any decision of the court.
The signature affixed to the bond, as certified by the clerk of the Supreme Court, is Samuel Simmons. It is conceded appellant's name is Samuel Simons, and as the declaration counts on a bond made by Samuel Simmons, it is insisted there is a fatal variance between the proof and declaration. The copy of the bond, when offered in evidence, was found to correspond exactly with the averments in the declaration, and the alleged variance did not exist. The summons which was served upon appellant was issued against Samuel Simons, and if there was a variance in the writ and declaration, the proper mode of taking advantage of it was by plea in abatement. This he did not do, and it is not perceived how the question of variance suggested becomes material.
Manifestly the only issue that could be tried under the pleadings was, whether appe...
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