Howe v. Forman

68 Ill. App. 398, 1896 Ill. App. LEXIS 511

• Court: Appellate Court of Illinois
• Decided: December 28, 1896
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

October 6, 1896, the Circuit Court, upon motion of the appellee, appointed a receiver of the property and effects of the appellant and one George C. Mastín, and in the same record entry rendered judgment against them for $307.46 in favor of the appellee.

The appellant and Mastín prayed an appeal, which was “ allowed upon their filing their bond,” etc.

November 5, 1896, the appellant alone filed an appeal bond, reciting an appeal by him, “ impleaded with George C. Mastín,” from the judgment only, and on the same day filed the transcript of the record here.

By operation of law, that appeal is to the next term of this court.

In Reynolds v. Perry, 11 Ill. 534, the Supreme Court held that a motion to dismiss an appeal “ improvidently granted,” might be granted before the term to which the appeal would take the case.

That the case is not properly here upon a bond by the appellant only, is conceded. Hileman v. Beale, 115 Ill. 355, is in point; but the appellant asks leave to file a bond here, in accordance with the order granting the appeal—relying upon section 69 of the practice act. Tedrick v. Wells, 152 Ill. 214, decides that where an appear is granted to a nominal plaintiff, suing for the benefit of others, a bond given by the persons for whose benefit the suit was prosecuted, would not bring up his appeal, so that he might be in court upon a bond to be given by him, under the section cited.

The defect here is the same in principle.

Mastín has taken “ no appeal, and made no attempt to do so,” as was said by Judge Baker there of Tedrick. The appeal is not from the order appointing the receiver; had it been, the question would have been different. John F. Alles Plumbing Co. v. Alles, 67 Ill. App. 252.

The motion of the appellee to dismiss the appeal is granted, and the appeal dismissed.

[Note.—Since this case was decided, the Supreme Court decided Hammond v. People, 164 Ill. 455, on which this court acted in Kelley v. Leith, April 15, 1897.]