Moses v. Royal Indemnity Co.

Mr. Justice Carter delivered the opinion of the court: This was a suit brought by appellee in the municipal court of Chicago against the Royal Indemnity Company and Lazar Jacobsohn upon a bond of $1000, to stay execution on a judgment obtained by appellee in the municipal court of Chicago against Lazar Jacobsohn for $500 and costs of suit. A writ of error was sued out from the Appellate Court to review such judgment in the municipal court, and the bond in question was filed, under the provisions of section 23 of the Municipal Court act, to stay execution upon said judgment for ninety days. The Royal Indemnity Company first filed a motion to strike appellee’s statement of claim on the ground of its insufficiency. This motion was overruled, and thereafter the company filed an affidavit of merits, which on motion of the appellee was stricken. The company elected to stand by such affidavit, and the court gave judgment for $500 and costs for appellee on default. This appeal was taken by the Royal Indemnity Company directly to this court from that judgment on the ground that the validity of section 23 of the Municipal Court act is involved. It is insisted in the brief of counsel for appellee that the validity of section 23 of the Municipal Court act cannot be raised here because the question was not raised on the trial in the municipal court and was not covered by the assignment of errors in this court. (Masonic Fraternity Temple Ass’n v. City of Chicago, 217 Ill. 58; Griveau v. South Chicago City Railway Co. 213 id. 633.) Since appellee’s brief was filed counsel for appellant have obtained leave from this court to assign errors here raising the constitutional question. A case cannot be brought by appeal or writ of error directly to this court as involving the validtiy of a statute unless the record shows that the question was in some way presented to the trial court for its decision. (Lee County v. Commissioners of Highways, 164 Ill. 574; Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. McGrath, 195 id. 104; Cummings v. People, 211 id. 392.) Nothing is found in the motions or affidavit of merits that questions, in terms, the constitutionality of said section 23 of the Municipal Court act. The affidavit of merits, however, filed by appellant states, among other things, that the trial court was without power or jurisdiction to stay said execution and that therefore said bond was without consideration and null and void. Under that objection the constitutionality of said section might have been raised in the trial court, (Wolf v. Hope, 210 Ill. 50; Christy v. Elliott, 216 id. 31; Shepherd v. City of Sullivan, 166 id. 78;) and counsel for appellant insist that it was so raised. In qur view of the law as applied to this case we do not deem it necessary to consider or decide whether section 23 of the Municipal Court act is unconstitutional. The consideration for the bond in the case at bar is stated in the bond itself, and the obligors not only received the full consideration of the stay of execution, but also the opportunity of having the said judgment reviewed in the Appellate Court, which resulted in a judgment against appellant, as set forth in the statement of claim. This- is not denied in any way on this record by appellant. The bond was voluntarily executed, -the effect of which was to stay the proceedings on the judgment. This was sufficient legal consideration. The general rule is, that by executing such a bond, and thereby obtaining the contemplated benefits pending the disposition of -the appeal, the parties may estop themselves from asserting certain defenses to liability upon the bond, the appellant having obtained by such bond all that he stipulated for therein. (4 Corpus Juris, 1269, 1270, and cited cases.) In the case of Daniels v. Tearney, 102 U. S. 415, a question similar -to that raised here was involved. It was conceded there that the law in question was unconstitutional. The court said (p. 421) : “It is well settled as a general proposition, * * * that where a party has availed himself, for his benefit, of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense. * * * In such cases the principle of estoppel applies with full force and conclusive effect.” (See, also, Stevenson v. Morgan, 67 Neb. 207; Board of Children’s Guardians v. Shutter, 139 Ind. 268.) This court has also held that the obligors on an appeal bond are estopped to deny the recitals of the bond. (Harding v. Kuessner, 172 Ill. 125.) In such case the principle of estoppel is clearly applicable. (Smith v. Whitaker, 11 Ill. 417.) One signing the bond cannot be heard to say that an appeal bond is a nullity or question the truth of the recitals in the bond that the appeal was obtained thereby. The obligor is bound by such recitals in the bond. (Meserve v. Clark, 115 Ill. 580.) The giving of this bond being neither prohibited by statute nor contrary to public policy, it is a common law obligation. The defendant, and his surety by signing this bond, obtained all the benefits of the bond. They are both now estopped from denying its binding obligation. Mix v. People, 86 Ill. 329 ; Courson v. Browning, 78 id. 208; George v. Bischoff, 68 id. 236. It is further contended by counsel 'for appellant that the bond in this case was filed with the clerk of the municipal court and that said bond was never delivered to the plaintiff or any person for plaintiff’s use, and therefore it is invalid. Said section 23 of the Municipal Court act provides that a stajr of execution bond shall be delivered to the clerk of the municipal court and by him filed. As counsel cannot raise the constitutionality of this section of the statute the statute must govern. There is no precise or set form in which the delivery of such bond must be made, in the absence of a statutory provision governing the same. The essence of the question whether there has been a delivery consists in the intent of the obligor to perfect the instrument and make it at once the absolute property of the obligee, and where there is such an intent, coupled with acts or words evincing" the same and showing the intention to consummate and complete the bond and to part absolutely and unconditionally with it and the right over it, it will be given legal existence. It need not be personally delivered by the obligor to the obligee. (5 Cyc. 740, and cited cases.) The Maryland case cited by counsel for appellant is not in harmony with the weight of authority on this question. The .amount of the judgment was not excessive. We find no error in the record. The judgment of the trial court will therefore be affirmed. Judgment affirmed.