Schott v. Youree

31 N.E. 591, 142 Ill. 233

• Court: Illinois Supreme Court
• Decided: June 18, 1892
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of Madison county, in favor of Charles S. Youree, late coroner of that county, for the use of Timothy Gruaz, against Martin J. Schott, on a replevin bond executed by him, as surety, for F. Ryhiner & Co., as principals.

First — The bond is executed to “Charles S. Youree, coroner of the county of Madison, in the State of Illinois, and to his successors in office, executors, administrators and assigns.” It is contended that, inasmuch as Youree did not succeed himself in office, this suit is improperly brought, and there is a variance between the bond described in the declaration, which omits the words “and to his successors in office,” and that offered in evidence.

Public officers can maintain an action as successors only when expressly authorized so to do by statute. “By the common law,-a suit on a bond payable to one and his successors or assigns, can be maintained only by the obligee during his life, and by his executors or administrators after his death.” There are exceptions to the rule, but they are not pertinent here. Stevens et al. v. Hay, 6 Cush. 220; Lord v. Lancey, 8 Shepley, (21 Me.) 468; Ferbee v. Sanders, 3 Ired. L. 360; Hoxie v. Weston, 19 Me. 322. Our statute simply requires, that before the execution of any writ of replevin “the plaintiff, or some one on his behalf, shall give to the sheriff, constable or other officer, bond,” etc. (Chap. 119 of Rev. Stat. of 1874, entitled “Replevin,” sec. 10.) The eleventh section requires that he shall return the bond so taken, to the clerk, etc.; and the twenty-fifth section provides, that “if, at any time, the condition of the bond required' by section 10" of this act shall be broken, the sheriff, constable or other officer, or plaintiff, in the name of the sheriff, to his own use, as the case may be, may sue and maintain an action on such bond,” etc. There is, therefore, plainly, no authority to make the bond payable to the successor, and no authority for a successor to bring suit on a bond taken by his predecessor. The words “successors in office” are, therefore, in that connection, without legal meaning or effect, and are mere surplusage, that the pleader rightly disregarded. (1 Cbitty’s Pleading, 262, *263.) And so, in our opinion, the suit was properly brought, and there was no variance between the allegations and the proofs in the respect contended.

Second — The writ of replevin was issued against George Hotz, sheriff of Madison county, and Jacob Brunschweiller, who was the sheriff’s custodian of the property, and it is contended that there is a variance between the allegations and the proofs, because the suit is brought for the use of Timothy Gruaz instead of for that of George Hotz. But the bond in ■evidence and the bond declared on are precisely the same, in legal effect. So much of the declaration as alleges for whose use the suit is brought is no part of the count in which the bond is described and its breach alleged. That allegation does not present an issuable fact, and no evidence is therefore necessary to support it and none is admissible in denial of it. The statute provides (sec. 25, supra,) that the action on the bond may be maintained by the officer- taking the bond, “for the recovery of all such damages and costs as may have been sustained in consequence of the breach of the condition.” Necessarily, then, the defendant may, on the trial, resist the recovery of damages and costs on the ground that they have mot been sustained in consequence of the breach of the conditions. The officer taking the bond, and who brings the suit for the breach of its conditions, legally represents all parties beneficially interested in recovering in such suit, and all legal defences that may be interposed as against any interest must be interposed to his suit. The statement of the use for which the suit is brought is merely to enable the court to know who is equitably entitled to control the suit, and if no use were stated, or if it were inaccurately stated, the duty of the plaintiff to distribute the proceeds of the judgment, being prescribed by statute, would be wholly unaffected. He must, whatever he should state the use to be, distribute the proceeds of the judgment to those injured by the breach of the bond, and, in the case of several being thus injured, in the relative proportion of their respective injuries. But since the defendant litigates all questions with the party bringing the suit, — that is, interposes all defences that he may have, as against any and every recovery, because of a breach of the bond, in the suit brought by the officers taking the bond, — it is manifestly of no concern to him how the proceeds of the judgment shall be distributed. Buckmaster v. Beams et al. 4 Gilm. 443; Atkins v. Moore, 82 Ill. 240.

But it seems to be supposed by counsel for appellant that Blatchford et al. v. Boyden, 122 Ill. 657, lays down a different rule. This is a misapprehension, as an examination of that case will'elearly show. In that case, as in this, the property was replevined from the sheriff who held it on execution. One of the executions under which the sheriff held the property was in favor of Robert E. Jenkins, assignee of Josiah R. Butler. Jenkins and the other plaintiff in execution were made defendants, with the sheriff,-to the replevin suit, and the bond executed to the coroner upon making the replevin, assumes to describe who are defendants in the replevin suit, but it therein describes Jenkins as assignee of Josiah E. Barker. In the introductory part of the declaration in the suit upon the replevin bond it is said the suit is brought for the use of the sheriff and the plaintiffs in execution, naming each, and the count upon the bond describes it as it was made, but alleges that-it is incorrectly therein recited, by mistake, that Jenkins is assignee of Barker, — that, in truth, he is assignee of Butler. It was objected that the bond described in the count and that offered in evidence were not, in legal effect, the same bond, and what was said in the opinion in that case, which counsel refer to as pertinent here, had reference to that question alone. There was no question of any kind in regard to the use alleged in the introductory part of the declaration. The opinion shows that Jenkins was unnecessarily made a defendant in the replevin suit, and his name, was unnecessarily mentioned in the replevin bond; that the writ of retorno habendo could only be executed by returning the property to the possession of the sheriff, whence it was taken by the writ of replevin, and by whom it must be applied upon the executions by virtue of which he had held its possession; and it was afterwards, among other things, added: “Jenkins and the other plaintiffs in execution are but nominal parties, at most, and their being joined or not, as beneficial plaintiffs, can in no wise prejudicially affect appellant.” And this is in entire accord with what we have before herein said.

Third — It appears that the plaintiffs in the replevin suit filed a petition in the circuit court of Madison county praying for a change of venue in that suit to some other coünty, on account of the prejudice of one of the judges of that judicial district who usually presided during terms of the court in that county; that subsequently it was agreed between the counsel of record in that case that the case should be tried in that •county at some future time, by another judge of the district, who was named; that subsequent to that agreement the cause was, at one or more terms of the court, continued generally, and finally, at a subsequent term of court, an order of the court was entered of record that the venue be changed to the circuit court of Jersey county, and that the records, etc., be transmitted to the Jersey circuit court for trial. The records were transmitted to the Jersey circuit court pursuant to the order, and subsequently the suit was dismissed by that court for want of prosecution. It is contended that under the plea of nul tiel record the record of this change of venue and dismissal of the case for want of prosecution was not admissible in evidence in this suit.

This does not present the question whether the circuit court erred in ordering that the venue be changed, for that record is not before us on appeal or writ of error. This is an entirely different suit, and that record is only collaterally brought before us as evidence on a question arising in this suit. Whether the evidence was competent for the purpose for which it was offered is the only question, and its materiality not being questioned, and it clearly appearing that the court had-jurisdiction of the persons of the plaintiffs in the replevin suit and of the subject matters of the order, the record was properly admitted in evidence. (Wimberley v. Hurst, 33 Ill. 166; Graceland Cemetery Co. v. The People, 92 id. 619; Cooper v. Reynolds, 10 Wall. 308.) The surety in the replevin bond (appellant here) contracted with reference to the action of his principals in prosecuting the replevin suit, and he is therefore concluded, as are his principals, by the judgments and orders made in that suit, so far as the present question is concerned. Stevens v. St. Louis and S. F. Railway Co. 94 Mo. 317; Riddle v. Baker, 13 Cal. 295. See, also, 12 Am. and Eng. Ency. of Law, p. 98, sec. 15, and cases cited in note 5 ; Gradle v. Kern, 109 Ill. 557.

Fourth — ^The record in evidence is certified in due form,, under the seal of the court, but it is signed, “J. E. McGready, clerk, by L. Laurent, deputy,” and counsel contend this is not a certificate “under the hand of the clerk of the court,” as required by section 13, chapter 51, of the Eevised Statutes of 1874, entitled “Evidence and Depositions.” But the statute authorizes the clerk of the circuit court to appoint a deputy, (sec. 9, chap. 25, Bev. Stat. 1874, entitled “Clerks of Courts,”) and at the common law a deputy has power to do every act which his principal might do. (5 Comyn’s Digest, title “Deputy, ” p. 195.) “The authority given by law to a ministerial officer is given to the incumbent of the office. Authority is not given to the deputy, but to the principal, and is executed by the principal, either by himself or his deputy.” (5 Am. and Eng. Ency. of Law, p. 624, and eases cited.) The objection is destitute of merit.

Fifth — It is objected that there is a variance between the record offered"in evidence and that described in the declaration, in stating both the names of the plaintiffs and of the defendants in the replevin suit. It is a sufficient answer to that objection that it was not made on the trial, where it might have been obviated either by an amendment of the declaration or the introduction of additional evidence. It comes too late when made for the first term in an appellate tribunal. The abstract shows only a general objection, and there was nothing to call the attention of the court to this particular objection. Benefield v. Albert, 132 Ill. 665; Espen v. Hinchliffe, 131 id. 468.

Sixth — It is objected that all the papers in the suit of Timothy Gruaz against the Highland Mechanical Works were improperly admitted in evidence under the declaration, as there is no averment in it to connect that case with George Hotz, and they were immaterial and irrelevant so far as his rights were concerned. If it be true that these papers were immaterial and irrelevant, it is not perceived how their introduction in evidence prejudiced appellant. But it was not necessary that there should have been an averment in the declaration connecting the sheriff with that case. The plaintiff in this suit averred sufficient to entitle him to recover when he showed the execution and delivery of the bond, and a breach of its condition by a judgment in his favor in the replevin suit and a failure to return the property. But appellant, for the purpose of mitigating damages, pleaded title in Byhiner & Co., and upon that, issue was joined, and it was certainly competent, on that issue, to show title in the sheriff by virtue of the execution in the case referred to. The evidence was not offered to sustain the allegations in the declaration, but to rebut the evidence offered by appellant in support of his plea.

Seventh — It is objected that a question was permitted to be asked a witness whether the property in controversy was regarded by its former owner, the Highland Mechanical Company, as personal or real estate. It is, in our opinion, impossible that this answer can have done appellant any harm. In both the affidavit for replevin and in the bond in suit the property is described as “goods and chattels,” and this estops appellant to now deny that they are such. Ballou v. Jones et al. 37 Ill. 95; Fahnestock v. Gilham et al. 77 id. 637.

Eighth — It is contended the court should have excluded all the evidence because the suit was not brought for the use of Hotz, the sheriff, instead of for the use of Gruaz, the plaintiff in execution. But it has already been shown that appellant has no interest in this question; that all legal questions are between the coroner, the plaintiff here, and the makers of the bond, and that appellant can set up every legal defense that he has to any suit on this bond, to the suit as thus brought. So that he does not have to pay for damages not within the scope and intent of the bond, nor be subjected to more than one action on account of the breach of the bond in failing to return the property, it can make no difference to him whether the proper usee is named in the declaration or not.

Ninth — The allegation in the fourth plea is, in substance, that the property was burned after it was replevied, and so it was impossible to make return of it in accordance with the judgment in the replevin suit. It is insisted that the court erred in sustaining a demurrer to this plea; but we have expressly held in Suppiger et al. v. Gruaz, 137 Ill. 216, that this ruling was right.

Tenth — It is contended the court erred in sustaining a demurrer to the seventh plea. It is alleged in that plea, “That after the making of the said bond, and after the said supposed change of venue and dismissal of said replevin suit in the county of Jersey, the said Timothy Gruaz, for whose use the suit is brought, filed his bond and his claim for damages in the county court of Madison county, against Frederick B. Suppiger, John H. Herman, Joseph G. Amman and Adolph Buegger, assignees of F. Byhiner & Co., the principals, which claim was adjudicated in the county court of Madison county, and an appeal taken by said Gruaz to the circuit court of this county, and at the October term, A. D. 1889, of said court, a judgment was rendered in favor of the said Gruaz, against the said assignees, as aforesaid, for the sum of $4000 with costs of suit, to be paid in due course of the settlement of the assigned estate of F. Byhiner & Co.; that by the judgment aforesaid the whole debt of $4000 in the bond sued on, has been fully satisfied.”

The appellant’s contention is, that under the authority of Mitchell v. Brewton, 28 Ill. 163, Thompson v. Ewert, 15 id. 415, and Moore v. Rodgers, 19 id. 347, appellee having thus obtained judgment against three of the obligors upon the bond, he was released. But the doctrine of the cases referred to has application only to judgments in actions at common law, in which the instrument sued upon becomes merged in the judgment. This plea does not set up a judgment in any action at common law upon the bond, against its principal makers, — but simply a statutory proceeding, pursuant to our statute relating to voluntary assignments, against the voluntary assignees of .such makers. Appellant could not have been made a defendant in that proceeding, and the only effect of it is, to compel a distribution of the property of the principal makers of the bond in the hands of their assignees, pursuant to the terms of the deed of assignment. The bond is not merged in the order to the assignees to pay upon it any or all dividends made, or to be made, of the debtor’s property in their hands, and it becomes satisfied to the extent, and no farther, that such payments are made. It is wholly for the benefit of appellant, and in no possible view can it result in injury'to him. The demurrer was properly sustained.

Eleventh — It is insisted the court erred in sustaining a demurrer to appellant’s third plea, which was to the effect that Byhiner & Go., for whom appellant was surety on the bond, failed in business, and assigned all their property to assignees for the benefit of their creditors, of which G-ruaz, for whose use this suit is brought, had notice; that it thereupon became his duty to file his claim with the assignees; that he failed to do so; that if he had done so he could have realized $2000 on the claim, wherefore he is released to that amount, etc. The effect of this, at most, is but to charge mere passive delay upon the creditor, and that will not har an action at law against the surety. Brandt on Suretyship, sec. 329; Dye v. Dye, 21 Ohio St. 86.

Twelfth — All of the other questions discussed in the arguments relate to the character, force and effect of the evidence, and are therefore settled by the judgment of the Appellate Gourt, and not open to review in this court. Alphin v. Working, 132 Ill. 484; Fitch v. Johnson, 104 id. 111; Bridge Co. v. Comrs. of Highways, 101 id. 518.

Finding no reversible error in the record, the judgment is affirmed.

Judgment affirmed.