Tederick v. Wells

• Citation: 152 Ill. 214,38 N.E. 625
• Parties: TEDERICK v. WELLS et al.
• Decision Date: 22 October 1894
• Court: Supreme Court of Illinois

152 Ill. 214

38 N.E. 625

TEDERICK

v.WELLS et al.¹

Supreme Court of Illinois.

Oct. 22, 1894.

Appeal from appellate court, fourth district.

Action of debt by J. E. Tederick, for the use of H. N. Ruffner, Hulman & Co., Robinson, Zimmerman & Co., and Hendrickson, Leffler & Co., against M. D. Wells, H. Y. McFarland, and B. R. Wells (a firm doing business under the firm name and style of M. D. Wells & Co.), J. A. Woodbury, John A. Bingham, and J. N. Gwin. Defendants obtained judgment on demurrer to pleas, and an appeal from the judgment was dismissed by the appellate court. Plaintiff appeals. Affirmed.

Wm. B. Wright and E. N. Rinehart (Faris & Hamil, of counsel), for appellant.

J. N. Gwin, J. A. Bingham, and Ashcraft & Gordon, for appellees.

BAKER, J.

J. E. Tederick, for the use of H. N. Ruffner, Hulman & Co., Robinson, Zimmerman & Co., and Hendrickson, Leffler & Co., brought debt on a replevin bond against M. D. Wells and others. The court overruled a demurrer of the plaintiff to the pleas of the defendants, and the plaintiff abided by his demurrer, and a judgment was rendered against him for costs. Thereupon, the following further order was made and entered in the cause, to wit: ‘To the rendering of which judgment the plaintiff excepts, and prays an appeal to the appellate court of the fourth district, which is granted by the court upon plaintiff filing bond within sixty days in the sum of two hundred and fifty dollars, said bond to be approved by the clerk of this court.’ Within the time limited, Herman Hulman, Anton Hulman, Benjamin S. Cox, John C. Zimmerman (for Robinson, Zimmerman & Co.), Alonzo P. Hendrickson, Charles W. Leffler, and William B. Wright executed and filed an appeal bond in the required sum, which was approved by the clerk of the court. The appeal was, on motion, dismissed in the appellate court, because the appeal was not taken or bond filed by J. E. Tederick, as provided by the order of the circuit court granting the appeal. Thereupon, a motion was made for leave to file an amended appeal bond, in support of which motion an appeal bond signed by J. E. Tederick was presented in the appellate court. But the appellate court refused the motion on the ground that Tederick had not filed his appeal bond within the time fixed by the order of the circuit court for filing the same, and made no attempt within that time to take or perfect his appeal.

Although Tederick was only the nominal plaintiff, yet the legal right of action was in him alone. This propositionis conceded. But it is urged that a nominal plaintiff cannot dismiss the suit, or otherwise prevent a hearing on the merits; and Sumner v. Sleeth, 87 Ill. 500, is cited in that behalf. The case announces that doctrine, but we are unable to see its application here. If we comprehend counsel, their claim is that equitable or use plaintiffs have the right to take and perfect appeals, and in doing so to execute and file appeal bonds. That question does not arise on this record, and any expression of opinion by us in regard to it would be mere dictum. H. N. Ruffner and the other usees did not pray on appeal, nor did any or either of the beneficial plaintiffs make such a prayer. And no appeal was allowed to all or any or either of them. The right of appeal is strictly a statutory right, and it can only be taken when allowed by the court, and in conformity with the order of the court. Carson v. Merle, 3 Scam. 168;Ryder v. Stevenson, 3 Scam. 539;Watson v. Thrall, 3 Gilman, 69;Johnson v. Barber, 4 Gilman, 1; The Niagara v. Martin, 42 Ill. 106;Chicago, P. & S. R. R. Co. v. Town of Marseilles, 104 Ill. 91;Hileman v. Beale, 115 Ill. 355, 5 N. E. 108; People v. Leaton, 121 Ill. 666, 13 N. E. 241. The bond must be filed by the person praying for and obtaining the order for appeal. The Niagara v. Martin, supra. Where an action brought in the name of one person for the use of another is appealed, the nominal plaintiff must be properly in court before a judgment can be rendered in the case. McCormick v. Fulton, 19 Ill. 570. The words, ‘for the use,’ etc., are unnecessary for any purpose other than to protect interest of the usee against the nominal plaintiff. Hobson v. McCambridge, 130 Ill. 367, 22 N. E. 823. In the case at bar it was ‘the plaintiff’-that is, J. E. Tederick-that prayed the appeal, and it was the appeal of said plaintiff that was granted ‘upon plaintiff filing bond within sixty days.’ It was not error to sustain the motion to dismiss the appeal that was unadvisably taken by some of the usees.

Section 69 of the practice act provides that no appeal shall be dismissed by reason of any informality or insufficiency of the appeal bond, if the party taking such appeal...