Willenborg v. Murphy

• Decision Date: 31 January 1865
• Citation: 40 Ill. 46,1865 WL 2963
• Parties: WILLENBORG et al.v.MURPHY, Administrator.
• Court: Illinois Supreme Court

40 Ill. 46

1865 WL 2963 (Ill.)

WILLENBORG et al.

v.MURPHY, Administrator.

Supreme Court of Illinois.

January Term, 1865.

MURPHY, administrator, etc., having instituted a suit in chancery in the Circuit Court of Macon county, against Henry Willenborg and Frank Willenborg, obtained a decree against Henry Willenborg alone, that he should pay to the complainant the sum of seventy-five dollars within a given time, etc. No decree was rendered against the defendant, Frank Willenborg. An appeal was prayed by both the defendants below, and an appeal bond executed, with a condition reciting that the decree appealed from was rendered against both Henry Willenborg and Frank Willenborg. The bond was signed by Henry Willenborg for himself, and by Frank Willenborg “by his agent, H. Willenborg.”

At the January Term, 1865, of the Supreme Court, Mr. A. J. GALLAGHER, for the appellee, moved the court to dismiss the appeal -- first, because it appeared from the record that the decree below was against Henry Willenborg alone, and not against both the defendants, as recited in the condition of the bond; second, because it did not appear that H. Willenborg had authority to execute the bond, such authority being denied by affidavit.

Messrs. SMITH & LOWE, for the appellants, resisted the motion to dismiss the appeal, but entered a cross motion for leave to amend the appeal bond, in case it should be held insufficient. Per CURIAM:

The first objection to the appeal bond is well taken; the condition in the bond recites a joint decree against both the defendants, when it appears from the record that the decree was against one of them alone, no decree whatever being rendered against the other. The recital in the condition should conform in that regard with the state of the case as it appears from the record.

In the second objection there is no force. The decree appealed from was, in fact, against Henry Willenborg alone, and he executed the appeal bond himself, so that it matters not that he had no authority to execute the bond on behalf of his co-defendant. Frank Willenborg had no occasion to take an appeal; indeed, he had no right to do so, as there was no decree against him and therefore nothing of which he could complain. His ineffectual attempt to take an appeal, or the joinder of his name in the appeal without authority, can in no way prejudice the rights of his co-defendant, who had the right of appeal from the decree rendered against him. The appeal...