{ "id": 5369145, "name": "Noah Barnes v. John R. Brookman et al.", "name_abbreviation": "Barnes v. Brookman", "decision_date": "1883-05-10", "docket_number": "", "first_page": "317", "last_page": "322", "citations": [ { "type": "official", "cite": "107 Ill. 317" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "49 Ill. 509", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2604358 ], "opinion_index": 0, "case_paths": [ "/ill/49/0509-01" ] }, { "cite": "14 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2584283 ], "opinion_index": 0, "case_paths": [ "/ill/14/0072-01" ] }, { "cite": "3 Scam. 347", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2471521 ], "opinion_index": 0, "case_paths": [ "/ill/4/0347-01" ] }, { "cite": "1 Gilm. 525", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2466280 ], "opinion_index": 0, "case_paths": [ "/ill/6/0525-01" ] }, { "cite": "105 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2790076 ], "opinion_index": 0, "case_paths": [ "/ill/105/0043-01" ] }, { "cite": "29 Ill. 392", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2452105 ], "opinion_index": 0, "case_paths": [ "/ill/29/0392-01" ] } ], "analysis": { "cardinality": 512, "char_count": 10077, "ocr_confidence": 0.487, "pagerank": { "raw": 4.927152805332601e-07, "percentile": 0.9343849776569986 }, "sha256": "af987e76b6c4c22275afbeb31ed16a8614cb1fcb76310b17c70f9527ac45a016", "simhash": "1:11b243fe5a9814d0", "word_count": 1731 }, "last_updated": "2023-07-14T19:08:42.452950+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Noah Barnes v. John R. Brookman et al." ], "opinions": [ { "text": "Mr. Justice Soholfield\ndelivered the opinion of the Court:\nThe only question sought to be raised upon this record relates to the amount of damages embraced by the judgment of the Superior Court. That some amount was recoverable is not questioned; it is simply controverted that the amount could be, under the evidence, equal to the full penalty of the bond. By pleading over the defendants waived their demurrer, and could not thereafter assign error on any ruling in regard to it. (American Express Co. v. Pinckney, 29 Ill. 392; Walker et al. v. Welch et al. 14 id. 277.) No motion in arrest of judgment was made, and the statute (Bev. Stat. 1874, sec. 6, chap. 7, title, \u201cAmendments and Jeofails, \u201d) prevents a reversal \u201cfor any mispleading, insufficient pleading,\u201d etc. No objection was taken to the admission of evidence, nor was any motion made to exclude evidence after it was admitted. No proposition of law was submitted to and passed upon by the court, and it is not shown that any question of law was distinctly presented to the court by the motion for a new trial, which was passed upon by the court in overruling that motion. The question, therefore, upon which we are asked to pass is purely one of fact.\nBut the finding of the Appellate Court is conclusive on all such questions, and it is of no moment how great or how slight may be the evidence the one way or the other, provided only the question is purely one of fact, to be determined from the preponderance of the evidence. Edgerton v. Weaver et al. 105 Ill. 43.\nThe judgment is affirmed.\nJudgment affirmed.\nSubsequently, on an application for a rehearing, the following additional opinion was filed:\nPer Curiam :\nA petition praying for a rehearing in Ibis case is presented to us, based upon the assumed ground that we have, in the opinion heretofore filed, misapprehended appellant\u2019s position, and it is therein said: \u201cAppellee concedes that if appellant was entitled to recover anything, he should have obtained judgment for the full amount of the penalty of the bond. \u201d This, then, presents only the question whether the bond is void upon its face; for if it is valid, there can, of course, be some recovery under it.\nWe have several times held that an obligation entered into'voluntarily, and for a- sufficient, consideration, unless it contravenes the policy of the law, or is repugnant to some provision of the statute, is valid at common law, notwithstanding the attempt may have been to execute it pursuant to a statute with the terms of which it does not strictly comply. Pritchett v. The People, 1 Gilm. 525; Fournier v. Faggott, 3 Scam. 347; Ballingall v. Carpenter, 4 id. 306; Todd v. Cowell, 14 Ill. 72. This bond was voluntarily entered into. It was entered into upon consideration of the issuing of a writ of injunction, which is, beyond all question, a sufficient consideration ; and it is not pointed out in argument, and we are unable to perceive of our own motion, wherein it contravenes the policy of the law, or is repugnant to any statutory-provisions. Indeed, we have held, in case of enjoining the collection of a promissory note, the statute prescribes no rule in regard to the conditions to be inserted in the bond, and that the chancellor or master may, hence, in the exercise of a reasonable discretion, require the complainant to give security for the payment of the debt, in case he fails to maintain his suit. Billings v. Sprague, 49 Ill. 509.\nWhether this bond is to be regarded as penal or absolute, we are, both by the concession of appellant and the fact that as the record comes before us wre can consider such questions only as may be entertained on error, relieved from inquiring into. At most, here, there was but a defective statement of the plaintiff\u2019s cause of action, and the rule is, a verdict will aid a defective statement of title, but will never assist a statement of a defective title- or cause of action. 1 Chitty\u2019s Pleading, (14th Am. ed.) 680, *681; 2 Tidd\u2019s Practice, (3d Am. ed.) 918, *919.\nThe rehearing is denied.", "type": "majority", "author": "Mr. Justice Soholfield Per Curiam :" } ], "attorneys": [ "Mr. George H. Leonard, for the appellant.", "Mr. Charles H. Crawford, for the appellees." ], "corrections": "", "head_matter": "Noah Barnes v. John R. Brookman et al.\nFiled at Ottawa May 10, 1883\nRehearing denied September Term, 1883.\n1, Pleading over\u2014waiver of demurrer. By pleading over a defendant waives bis demurrer to tbe declaration, and can not thereafter assign on any ruling in regard to it.\n2. Amendments and jeofails\u2014defective pleading cured after judgment. If no motion is made in arrest of judgment, section 6 of tbe Statute of Amendments prevents a reversal \u201cfor any mispleading, insufficient pleading,\u201d etc. Tbe rule is, a verdict will aid a defective statement of title, but will never assist a statement of a defective title or cause of action.\n3. Bond\u2014good as a common lato obligation, though not in compliance with the statute. An obligation entered into voluntarily, and for a sufficient consideration, unless it contravenes the policy of the law, or is repugnant to some provision of the statute, is valid at common law, notwithstanding the . attempt may have been to execute it pursuant to a statute with the terms of which it does not strictly comply.\n4. Injunction bond\u2014of its conditions. It has been held, in case of enjoining the collection of a promissory note, the statute prescribes no rule in regard to the conditions to be inserted in the bond, and that the chancellor or master may, hence, in the exercise of a reasonable discretion, require the complainant to give security for the payment of the debt, in case he fails to maintain his suit.\nAppeal from the Appellate Court for the First District;\u2014 heard in that court on appeal from the Superior Court of' Cook county; the Hon. Joseph E. Gaby, Judge, presiding.\nThis was an action of debt, in the Superior Court of Cook county, by appellees, for the use of William C. Minard, against appellant and Abraham Moses, on a bond, of which the following is a copy:\n\u201cKnow all men by these presents, that we, Abraham Moses and Noah Barnes, of the county of Cook, and State of Illinois, are held and firmly hound unto John B. Brookman and T. M. Bradley, of the same county and State aforesaid, in the sum of $1200, to be paid to the said John B. Brookman and T. M. Bradley, their executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves jointly and severally, and our respective heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this \u00e9th day of May, A. D. 1872.\n\u201cWhereas, the above bounden Abraham Moses has filed his bill of complaint in the Superior Court of Cook county, and State of Illinois, against the above named John B. Brookman and T.- M. Bradley, praying, among other things, for an injunction to restrain said T. M. Bradley from taking any further steps towards the enforcement of a judgment entered against Abraham Moses by said John B. Brookman, in the Superior Court of Cook county, December 21, 1871, or from levying on any of said Moses\u2019 property, or intermeddling with the same, under any execution issued under said judgment, and to restrain said Brookman from disposing of three other promissory notes given by Abraham Moses and Martha Moses to John R. Brookman; and whereas, said court has allowed an injunction for that purpose, according to the prayer of said bill, upon the said Abraham Moses giving bond and security as provided by law:\n\u201cNow, therefore, the condition of the above obligation is such, that if the above bounden Abraham Moses and Noah Barnes, their executors or administrators, or any of them, shall and do well and truly pay, or cause to be paid, to the said John R. Brookman and T. M. Bradley, their heirs, executors, administrators or assigns, the sum of $1200; and also all such costs and damages as shall be awarded against the said complainants in case the said injunction shall be dissolved, then the above obligation to be void; otherwise to. be and remain in full force and effect.\n(Signed) A. Moses, [Seal.]\nNoah Barnes. [Seal.] \u201d\nThe bond was executed to obtain a writ of injunction, which was thereupon issued, enjoining and restraining said John R. Brdokman and Timothy M. Bradley from taking any further steps toward the collection and enforcement of a certain judgment note upon which judgment ivas entered in the Superior Court of Cook county, December 21, 1871, in favor of John R. Brookman, against Abraham Moses, in the sum of $557.57, etc., and enjoining and restraining John R. Brookman from entering up judgment against Martha Moses on a certain judgment note for $500, upon which judgment had already been entered up against Abraham Moses, as aforesaid, or from transferring said judgment, and from transferring, assigning or selling, or entering up judgment on three promissory notes, for $500 each, given by Abraham Moses and Martha Moses, and held by said John B. Brookman, etc.\nThe injunction was dissolved, but no damages were awarded by the court. The order of dissolution is as follows, omitting the caption: \u201cThis day come the complainants hereto, by * * * their solicitors, and the defendants, by * * * their solicitors, also come. And thereupon the said defendant submits his motion herein to dissolve the injunction heretofore granted in this cause, and the court now here, after hearing affidavits read in support of the same, and in the opposition thereto, and being fully advised in the premises, sustains said motion, and it is ordered by the court that the said injunction be and the same is hereby dissolved.\u201d\nThe defence of accord and satisfaction was interposed, but inasmuch as no question arising thereon is discussed in the opinion, it is unnecessary to set out the evidence arising thereon.\nThe cause was submitted to and tried by the court without the intervention of a jury, by agreement of parties. The court rendered judgment for plaintiffs for $1200 debt, and $1200 damages, and costs of suit. On appeal from this judgment to the Appellate Court for the First District it was affirmed. This appeal is from that judgment.\nMr. George H. Leonard, for the appellant.\nMr. Charles H. Crawford, for the appellees." }, "file_name": "0317-01", "first_page_order": 317, "last_page_order": 322 }