#### Centralia and Chester Railroad Company v. Maria J. Brake et al.

Railroads—Construction—Right of Way—Condemnation—Damages— Appeal Bond,—Immaterial Issue—Repleader.

1. In an action brought against a railroad company on an appeal bond given by it in condemnation proceedings, this court directs the award of- a repleader, for the reason that defendant’s special plea, on which issue was joined, made an immaterial issue, and for the further reason that it does not appear that the bond upon which suit is brought was offered in evidence in the trial court.

2. A verdict can not aid an immaterial issue.

[Opinion filed June 15, 1889.]

Appeal from the Circuit Court of Washington County; the Hon. William H. Snyder, Judge, presiding.

Messrs. W. S. Forman and Daniel Hay, for appellants.

*460Messrs. J. A. Watts and W. Henry Moore, for appellees.

Phillips, J.

The Centralia & Chester R. R. Co. instituted proceedings for condemnation of right of way over lands of appellees, under Chap. 47, Starr & C. Ill. Stats., and judgment entered. The railroad company prosecuted an appeal to the Supreme Court and filed its appeal bond. The judgment was affirmed. This is an action on the appeal bond. The appellees, by leave of court, amended their declaration and ade^ed an averment that the railroad company, after filing the appeal bond against the protests of plaintiff, entered into possession of the right of way, etc: To that averment, which was an unnecessary one, the defendants filed a special plea denying that the railroad company had entered and taken possession and remained in possession, etc., and replication was filed. There was also a plea of non est fa'otum. The special plea on which issue was taken made an immaterial issue. A verdict can not help an immaterial issue. Tidd’s Prac. 921.

Further, we have looked into the record and can not find the appeal bond sued on was offered in evidence. We must, therefore, reverse and remand this cause, with directions to the court to award a repleader.

Reversed and remanded vñth directions.