McDonald v. Allen

Gary, J. This is an action of debt on the appeal bond, given on an appeal from a judgment of the Circuit Court at the December term, 1886, to this court, and the only issue is upon the allegation in the declaration, denied by the idea, that the judgment described in the bond had been affirmed by this court. The appellees put in evidence a certified copy of the judgment of this court affirming a judgment of the Circuit Court, entitled in a cause wherein the party recited in the bond to have taken the appeal was the appellant, and the parties recited in the bond to have recovered the judgment were appellees. This was sufficient evidencg, prima facie^ of the identity of the judgment recited in the bond and the one affirmed in this court. The appellant then proved (partly by incompetent evidence, but let that pass,) that there was in the Circuit Court a record of a suit wherein the appellees and one Stevens had recovered the same sum as this bond recited, against the same defendant; that that case was appealed to this court and affirmed, and was taken by writ of error to the Supreme Court, and that the record of it had been taken from this court to that, and was there. The appellees had put in evidence an execution purporting to be upon the judgment recited in the bond, and that bore the same general number as the suit proved by the appellant. There was, however, no evidence, except the inference from the foregoing, that the judgment of affirmance here, proved by the appellees, was in a case where Stevens was one of the appellees. The recitals in the bond estopped the appellant to deny that there was such a judgment as therein recited in the Circuit Court, and that from that judgment an appeal was taken to this court. Arnott v. Triel, 50 Ill. 174. The evidence of the appellees was sufficient, as before said, prima faeie, to prove the affirmance of that judgment. The only way to disprove it, probably, was either to present the complete record as it stood here when the judgment was" affirmed, or, by application here, have the record of affirmance amended as to the title of the cause, and then it would have .been competent to prove, by parol, that there was no other case here in which the appellees and original defendant were parties. Had that been done, the question whether there was a fatal variance, or a case where the proof only went beyond and did not contradict the allegation, would have arisen. There is no such question now in the ease. This appellant is only a surety, yet the defense has no equity in it. After many years of litigation and the judgment of three courts—one of them twice—if the appellees can get one more they will probably get their money. Judgment affirmed.