Miner v. Reed

Pleasants, J. This action was brought on a replevin bond given by defendants in error to Miner, the Constable, who executed the writ in the suit of Heed against Wiggins. The breach assigned was, that though Wiggins had judgment for a return of the property it was not returned, but was eloigned by Heed and converted to his own use. There were several issues joined, but the defense was successfully made below upon the plea of a former adjudication. The court instructed the jury to find for the defendants, refused a new trial and entered judgment upon the verdict so found, on which, plaintiff sued out this writ of error. From the records, files and evidence introduced under the plea mentioned, it appears that the plaintiff in error had brought suit upon this same bond against the sureties only, Dowdall and Darby, before a Justice of the Peace, in which the Circuit Court, on appeal, at first admitted the bond, hut afterward, upon evidence that certain erasures and interlineations (not properly shown by this record) were made after its execution, withdrew, it, whereupon plaintiff got leave to amend his writ by striking out the words, “Darwin C. Miner, who sues for the use of,” and then offered it as a spoliated bond (whatever may be meant by such an offer), hut it was again excluded by the court and a verdict was returned for the defendants, on which judgment was duly entered. The plea of former adjudication, with the others, was filed In the case under the title of “Darwin C. Miner, who sues for the use of John Wiggins, v. William L. Dowdall and John C. Darby/3 and averred that “the plaintiff33 heretofore impleaded “the defendants/3 etc., and that the suit was upon the same bond in the declaration mentioned and for no other cause of action whatever. A demurrer to this plea having been overruled, plaintiff replied, 1, mil tiel record, and 2, a traverse of the alleged identity of the cause of action, on which issues wore joined. Upon the trial of these he objected to the records and files in the former suit, when offered by defendants in connection with oral testimony to the identity of the bond, but the court admitted them. The ground ¡of objection here urged is alleged variance between the allegations and proofs, both as to parties and cause of action, but this can not avail him because it was not specifically brought to the attention of the court below, according to the rule declared in St. Clair Co. Ben. Soc. v. Fietsam, 97 Ill. 474, 480, and other eases. The general objection," however, does raise what we regard as the only question of importance presented by this record, namely, its competency. Treating the plea as a good plea of a former judgment, in bar, we are of opinion these records and files were not competent evidence upon the issue on trial. They showed that the suit was brought before a Justice of the Peace and without written pleadings, but that it was against Dowdall and Darby only, on a joint and several bond executed by them and Reed. The pleading, in such a case, being determined by the evidence, it is as if plaintiff had declared on the bond offered, alleging’ its execution by Reed also, but showing no reason why he was not joined as a defendant. The pleading, therefore, did not state a case on which he could lawfully have judgment against the defendants, and the defect was such as could he reached by a motion in arrest, as well as by demurrer, or on error. A plea of non-joinder in abatement was not necessary. Cummings v. People, 50 Ill. 132, and cases there cited. And since a judgment for the plaintiff could not have been lawfully rendered because of such defect in the pleading, whatever may have been the proof, the judgment for defendants is not a bar to another action upon the same bond with proper parties and allegations. Smalley v. Edry, 19 Ill. 207. The fact that plaintiff had no legal cause of action against the two sued, and it was so adjudged, would have no tendency to prove that he had none upon the same instrument against one or all three of the obligors. That is all this evidence proved, all that the judgment could prove, and what the court ruled in reference to erasures or interlineations in the bond, or upon other interlocutory questions arising on the trial,.is not res adjudioata. It was therefore error to admit this evidence. In this view it is unnecessary to pass upon the sufficiency of the third replication to said plea, setting up fraud in procuring the judgment referred to. For the error indicated the judgment of the Circuit Court herein is reversed and the cause remanded. Reversed and remanded.