Town v. Howieson

• Decision Date: 24 October 1898
• Citation: 51 N.E. 712,175 Ill. 85
• Parties: TOWN v. HOWIESON.
• Court: Illinois Supreme Court

175 Ill. 85

51 N.E. 712

TOWN

v.HOWIESON.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Bill by Jeanette Howieson against David E. Town and another to foreclose a deed of trust. From a decree for complainant, defendant Town appealed to the appellate court. His appeal was dismissed, and he appeals. Affirmed.Charles Pickler, for appellant.

James A. Peterson, for appellee.

CARTER, C. J.

The question here is whether or not the appellate court erred in dismissing the appellant's appeal to that court. There was a decree of foreclosure of a deed of trust on real estate against appellant and Nathan Silverman at the October term, 1897, of the circuit court of Cook county. Upon the back of the draft of the decree the following minute of an order for appeal was indorsed: ‘Appl. by def'ts David E. Town and Nathan Silverman to Appl. Ct.-Bd. $300.-20ds.’ In entering the decree, the clerk wrote up the order for appeal thus: ‘And thereupon said defendants, David E. Town and Nathan Silverman, pray an appeal from this decree to the appellate court in and for the First district of Illinois, which is granted on condition that said defendants do file herein a good and sufficient bond, in the penal sum of $300, within twenty days, with sureties to be approved by the clerk of this court.’ Within the time, Town presented his separate appeal bond, had it approved by the chancellor and filed it with the clerk, and the transcript was duly filed in the appellate court. Afterwards appellant moved the appellate court for leave to amend the appeal bond,-in what respect, the record does not show, but shows only the motion, and that it was denied. Afterwards, on the same day, on suggestion of a diminution of the record, appellant's motion for leave to supply the same instanter and to assign additional errors was allowed, and the order was complied with. Thereupon, on motion of the appellee, the appeal was dismissed. The supplemental record, upon which error was also assigned, shows that at the April term, 1898, of the circuit court, appellant moved to amend the order for appeal of that court to conform to the minute on the draft of the decree; appellant contending it allowed an appeal by him on filing separate bond, approved by the chancellor. The chancellor enteredan order amending the order previously entered in no respect, except that the appeal bond should be approved by the chancellor. When this supplemental record was filed, the only effect it had was to cure the defect in the approval of the bond; it having been approved by the chancellor, instead of the clerk. The motion to amend had been denied, and was not thereafter renewed, and leave was not asked to file a new or sufficient bond conforming to the order. The record does not show, beyond the prayer for appeal, any attempt whatever by the defendant Silverman, or on his behalf, to take or to join in an appeal, but, on the contrary, an attempt by Town, only, to perfect his separate appeal. Upon this state of the record, we are not called upon to decide whether or not it would have been error, had the appellate court refused leave to file a good and sufficient bond on behalf of both defendants below, under section 69 of the practice act, which provides that ‘no appeal to the supreme or appellate court shall be dismissed by reason of any informality or insufficiency of the appeal bond, if the party taking such appeal shall,...