Barnes v. Brookman

Mr. Justice Soholfield delivered the opinion of the Court: The 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, “Amendments and Jeofails, ”) prevents a reversal “for any mispleading, insufficient pleading,” 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. But 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. The judgment is affirmed. Judgment affirmed. Subsequently, on an application for a rehearing, the following additional opinion was filed: Per Curiam : A 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’s position, and it is therein said: “Appellee concedes that if appellant was entitled to recover anything, he should have obtained judgment for the full amount of the penalty of the bond. ” 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. We 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. Whether 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’s 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’s Pleading, (14th Am. ed.) 680, *681; 2 Tidd’s Practice, (3d Am. ed.) 918, *919. The rehearing is denied.