{ "id": 5357029, "name": "Jacob C. Portis, Defendant in Error, v. Illinois Surety Company, Plaintiff in Error", "name_abbreviation": "Portis v. Illinois Surety Co.", "decision_date": "1913-01-23", "docket_number": "Gen. No. 17,680", "first_page": "590", "last_page": "594", "citations": [ { "type": "official", "cite": "176 Ill. App. 590" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "78 Ill. App. 471", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5788127 ], "opinion_index": 0, "case_paths": [ "/ill-app/78/0471-01" ] }, { "cite": "81 Ill. App. 435", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5209303 ], "opinion_index": 0, "case_paths": [ "/ill-app/81/0435-01" ] }, { "cite": "50 Ill. 174", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606972 ], "opinion_index": 0, "case_paths": [ "/ill/50/0174-01" ] }, { "cite": "86 Ill. 329", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2770271 ], "opinion_index": 0, "case_paths": [ "/ill/86/0329-01" ] }, { "cite": "78 Ill. 210", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "219 Ill. 616", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5620751 ], "opinion_index": 0, "case_paths": [ "/ill/219/0616-01" ] }, { "cite": "115 Ill. 580", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2877294 ], "opinion_index": 0, "case_paths": [ "/ill/115/0580-01" ] }, { "cite": "228 Ill. 633", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5628729 ], "opinion_index": 0, "case_paths": [ "/ill/228/0633-01" ] }, { "cite": "213 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3314320 ], "opinion_index": 0, "case_paths": [ "/ill/213/0328-01" ] }, { "cite": "173 Ill. 112", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5540147 ], "opinion_index": 0, "case_paths": [ "/ill/173/0112-01" ] }, { "cite": "225 Ill. 570", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3329829 ], "opinion_index": 0, "case_paths": [ "/ill/225/0570-01" ] }, { "cite": "179 Ill. 83", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5547463 ], "opinion_index": 0, "case_paths": [ "/ill/179/0083-01" ] }, { "cite": "147 Ill. 194", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 833748 ], "opinion_index": 0, "case_paths": [ "/ill/147/0194-01" ] } ], "analysis": { "cardinality": 389, "char_count": 7543, "ocr_confidence": 0.531, "pagerank": { "raw": 1.10557368627794e-07, "percentile": 0.5694704594746643 }, "sha256": "1c5b73accce168e4a1ad890678394bbe56e8d1c5760080bcc355cf06d91e5e00", "simhash": "1:cf7f5473b0dad4ad", "word_count": 1328 }, "last_updated": "2023-07-14T15:47:28.669055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jacob C. Portis, Defendant in Error, v. Illinois Surety Company, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Justice Fitch\ndelivered the opinion of the court.\nAfter striking from the files a fourth amended affidavit of merits, the municipal court entered judgment by default for $506.65 against the Illinois Surety Company upon the plaintiff\u2019s affidavit of claim. The statement of plaintiff\u2019s claim, as filed, sets out in haec verba an appeal bond for $1,000, signed by Fannie Singer and the Surety Company. The bond recites that Jacob C. Portis recovered a judgment in the County Court of Cook County for $425 against \u201cBernard Sangerman, executor of the estate of Abraham Singer, deceased,\u201d from which judgment \u201csaid Fannie Singer, successor in trust of Bernard Sanger-man, has prayed for and obtained an appeal to the appellate court;\u201d and the condition is as follows: \u201cNow, therefore, if the said Fannie Singer, successor in trust of Bernard Sangerman, shall duly prosecute her said appeal with effect, and moreover, pay the amount of the judgment, costs, interest and damages rendered and to be rendered against her in case the said judgment shall be affirmed in said appellate court, then the above obligation to be void, otherwise to remain in full force and virtue.\u201d The statement then avers that said judgment was affirmed in the appellate court, and that plaintiff claims that defendant is liable for $506.65, as follows: Original judgment, $425; interest, $56.50; county court costs, $12; appellate court costs, $13.15.\nThe fourth amended affidavit of merits which was stricken from the files (presumably under the rule of the municipal court which authorizes that to be done when it appears from the affidavit of merits that the defendant \u201cis relying on a defense that is clearly unfounded in law\u201d) states, in substance, that the nature of the defense is that the bond was null and void for the reason that Fannie Singer was not a party to the record nor to the judgment in the case in which the appeal bond was filed, and that the appellate court decided that said judgment was not against Sanger-man, as executor, but against him personally.\nThe right of appeal is purely statutory, and the statute gives the right only to a party to the suit. If an appeal be taken and a bond be filed by one who is not a party, the appeal will be dismissed on motion. Louisville, E. & St. L. Consol. R. Co. v. Surwald, 147 Ill. 194; Union Nat. Bank of Chicago v. Barth, 179 Ill. 83; Cleveland v. Cleveland, 225 Ill. 570. In this respect there is a material distinction between the right to an appeal and the right to sue out a writ of error, the latter being a common-law writ available to any of the parties or their privies, or to any one who appears by the record to be prejudiced by the judgment. Anderson v. Steger, 173 Ill. 112; Granat v. Kruse, 213 Ill. 328; Moll v. Sanitary District, 228 Ill. 633.\nThe bond here sued upon is an appeal bond, approved by the county court. It does not show on its face that Fannie Singer was a party to the suit. Its language clearly implies the contrary. Furthermore, the statute provides (Practice Act, section 92) that if an appeal is taken from a money judgment \u201cthe condition of the bond shall be for the prosecution of such appeal, and the payment of the judgment, interest, damages and costs in case the judgment is affirmed.\u201d\nThis bond shows that an appeal was prayed and allowed from a money judgment, yet the condition is not for the payment of the judgment appealed from, but for the payment of the judgment \u201crendered and to be rendered against her in case the said judgment shall be affirmed.\u201d It was not, therefore, a statutory bond, and upon motion in the appellate court, the appeal would either have been dismissed, or a proper bond required to be filed. No such motion was made, however, and the bond apparently served the same purpose, pending the hearing of the appeal, as if it had been filed by a party to 'the suit, and had contained the statutory conditions. Under such circumstances, the bond is not a mere nullity, as claimed by the affidavit of merits, but was valid and binding upon the obligors according to its terms as a voluntary contract executed upon a good consideration. Me-serve v. Clark, 115 Ill. 580; McCarthy v. Chimney Construction Co., 219 Ill. 616. The surety in such a bond is estopped from denying that it is a binding obligation, and that its recitals are true. Courson v. Browning, 78 Ill. 210; Mix v. People, 86 Ill. 329; Arnott v. Friel, 50 Ill. 174; Terre Haute & I. R. Co. v. Peoria & P. U. R. Co., 81 Ill. App. 435; McCarthy v. Chimney Construction Co., supra. \u201cThe obligee in such a case will recover substantial damages, or only nominal ones, or none at all, according to the terms of the bond.\u201d Weigley v. Moses, 78 Ill. App. 471. While the conclusion stated in the affidavit of merits that the bond was null and void is inaccurate, yet the fact alleged as a defense is that there was no judgment rendered against Fannie Singer. If this be true, in point of fact, then under the authorities above cited, Portis, the obligee, is not entitled to recover the amount of the judgment against Sangerman, as such, but is entitled to recover only such damages as he may have sustained under the strict letter of his bond. No such damages are claimed in the plaintiff\u2019s statement of claim.\nWe conclude, therefore, that to the extent that the affidavit of merits avers as a fact that Fannie Singer was not a party to the judgment in the case in which the bond was filed, it states, prim,a facie, a good defense to the plaintiff\u2019s claim of right to recover the amount of such judgment. Plaintiff in error was entitled to a trial upon the issue of fact thus presented and the court erred in striking the affidavit from the-files.\nThe judgment will be reversed and the cause remanded for further proceedings, not inconsistent with this opinion,\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Fitch" } ], "attorneys": [ "Charles J. Herman, for plaintiff in error; Douglas C. Gregg, of counsel.", "Morton A. Mergentheim, for defendant in error." ], "corrections": "", "head_matter": "Jacob C. Portis, Defendant in Error, v. Illinois Surety Company, Plaintiff in Error.\nGen. No. 17,680.\n1. Appeals and errors\u2014liability of surety on appeal bond. An appeal bond conditioned for the payment \u201cof the judgment rendered and to be rendered against her in case the said judgment shall be affirmed,\u201d where the principal so referred to, who appeals the case, is not a party of record or to the judgment, is not a statutory bond, but where no motion to dismiss the appeal is made and the bond serves the same purpose as if valid, the surety is estopped from denying its recitals or that it is binding upon the obligors as a voluntary contract executed upon good consideration, and is liable for substantial damages, or only nominal, or none at all, according to the strict letter and terms of the bond.\n2. Appeals and errors\u2014-parties. The right of appeal is purely statutory and the statute gives the right only to a party to the suit, while the right to sue out the common-law writ of error is available also to any one who is privy to one of the parties or who appears to have been prejudiced by the judgment.\n3. Municipal court\u2014affidavit of merits to action on appeal bond. In an action on an appeal bond an affidavit of merits which sets forth that the bonded principal was not a party to the record and judgment appealed from, presents prima facie a good defense.\nError to the Municipal Court of Chicago; the Hoist. William N. Gbmmlll, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.\nReversed and remanded.\nOpinion filed January 23, 1913.\nCharles J. Herman, for plaintiff in error; Douglas C. Gregg, of counsel.\nMorton A. Mergentheim, for defendant in error." }, "file_name": "0590-01", "first_page_order": 620, "last_page_order": 624 }