New York National Exchange Bank v. Reed

Mr. Justice Dunn delivered the opinion of the court: William S., Reed filed his bill in the superior court of Cook county against the appellees, New York National Exchange Bank and Elmer H. Adams, its attorney, to enjoin the prosecution of a scire facias to revive a judgment for $1019.29.. recovered by the bank against Reed and to enjoin any attempt to collect the judgment. Reed gave a bond, with the Fidelity and Deposit Company of Maryland as surety, conditioned for the payment of the judgment and of all costs and damages sustained by the bank and Adams, or either of them, in case the injunction should be dissolved. A preliminary injunction was granted, which was afterward dissolved, and the bill was dismissed for want of equity, with an award of costs to the defendants therein and $100 damages to the bank. Thereupon the bank and Adams brought suit in the superior court of Cook county on the injunction bond and filed with their declaration an affidavit of their claim. The defendants filed ten pleas but no affidavit of merits, and thereupon the court, on plaintiffs’ motion, struck the pleas from the files,- overruled the defendants’ motion for leave to file an affidavit of merits and additional plea instanter, and entered judgment against the defendants by default. The defendants appealed to the Appellate Court, and from the judgment of affirmance in that court again appeal. There was an appeal from the decree in the injunction suit which was pending when this judgment on the injunc- . tion bond was rendered, and the appellants moved for an extension of time to plead until after the disposition of the appeal. It was not error to overrule this motion. The condition of the bond was broken by the dissolution of the injunction, and the obligee was not bound to await the outcome of the appeal before pursuing his remedy on the bond. By the express provision of the statute the appeal did not continue the injunction in force. (2 Starr & Cur. Stat. sec. 21, p. 2153.) The plaintiffs were therefore at liberty to proceed to collect their damages by a suit on the injunction bond. The appeal did not stay the prosecution of such suit. The appellants insist that there was a misjoinder of causes of action because the declaration claims for the costs, which were awarded in favor of the bank and Adams jointly, and the judgment and damages, in which the bank alone was interested. There is only one cause of action,— the breach of the bond. The contract is to pay to both the obligees, upon condition broken, the judgment and all costs and damages, whether awarded to one or to both, and for a breach suit must be brought in the name of both obligees for all damages sought to be recovered. The affidavit filed with the declaration stated “that there is now due from the defendants to the plaintiffs, after allowing to them all just credits, deductions and set-offs,” etc. It is objected that this is a statement that there is an amount due from the defendants to the plaintiffs after allowing to the plaintiffs all just credits, deductions and set-offs. The objection is not well" taken. (Angus v. Sullivan, 166 Ill. 461; Angus v. Orr & Lockett Hardware Co. 64 Ill. App. 378.) The affidavit was in conformity with the statute, and the plaintiffs were entitled to judgment unless the defendants filed with their pleas an affidavit of merits. No such affidavit having been filed the pleas were properly stricken. (Filkins v. Byrne, 72 Ill. 101.) On defendants’ motion for leave to file the additional plea and affidavit it was proper for the court to require them to disclose a meritorious defense, setting forth its nature. (Wilder v. Arwedson, 80 Ill. 435.) The plea was bad, for it alleged only the pendency of the appeal to the Appellate Court in the injunction case, and the affidavit did not disclose any other defense. It was not error to overrule this motion and enter judgment by default. This record discloses no error, and the judgment will be affiimed. Judgment affirmed.