Morse v. Goetz

Mr. Presiding Justice Shepard delivered the opinion of the Court. This appeal is prosecuted to reverse a judgment in favor of appellees and against appellant, based upon a scire facias. The appellant executed, as surety, an appeal bond given by the Davis & Morse Company, on an appeal to the Circuit Court from a judgment of a justice of the peace against said company and in favor of one Louis B. Lehmann. When the appeal case came on for trial in the Circuit Court, leave of court was asked, and obtained, to change the plaintiff to John B. Goetz & Co., partners, for the use of Louis B. Lehmann, and judgment was rendered by the Circuit Court in favor of said Goetz & Co., and against the defendants, Davis & Morse Company, for the use of Lehmann. ' Scire facias proceedings were thereupon begun against the appellant as surety upon said appeal bond. To the scire facias the appellant pleaded that he did not execute the bond to the present plaintiffs, the appellees here, and non est factum. The plaintiffs, appellees, demurred generally to the pleas, and the demurrer was sustained. Thereupon the defendant, appellant, elected to stand by his pleas, and judgment was rendered against him, and he appeals to this court from that judgment. Sec. 62, Chap. 79, Revised Statutes, prescribes the form of bond in appeal cases from 'judgments of justices of the peace, and section 71 of the same chapter, provides when, in whose favor, and against whom, a scire facias may issue. Here was an appeal bond running to Lehmann, the plaintiff, in the justice of the peace judgment. On the trial of the appeal from that judgment, a new party plaintiff, Goetz, was substituted for Lehmann, and judgment was rendered in favor of the substituted plaintiff. The scvre facias was issued in the name of Goetz, the new or substituted plaintiff, and judgment was rendered in his favor against the surety on the appeal bond which ran to Lehmann. The fact that Goetz sued for the use of Lehmann, the obligee in. this appeal bond, does not make the judgment one in favor of Lehmann. “ A person who is interested merely as usee is not regarded as a party to the suit.” Northrop v. McGee, 20 Ill. App. 108. It was a matter of right for the plaintiff in the original suit to substitute other parties plaintiff for himself, but having done so, the surety on the appeal bond could not be subjected to judgment by scire facias proceedings in favor of such substituted plaintiffs. A surety will be held only according to the letter of his obligation. Morse, as surety, entered into no obligation to Goetz. His obligation was to Lehmann alone. It might well be that he would not have consented to become surety of the defendants in a suit against them by Goetz. There could be no breach of the condition of the bond signed by Morse, without a judgment in the appeal suit in favor of Lehmann. Phillips v. Wells, 2 Sneed (34 Tenn.) 153; Seelye v. The People, 40 Ill. App. 449; Block v. Blum, 33 Ill. App. 643. The appellant is in no way liable to the appellees on any cause of action disclosed by this record, and the judgment of the Circuit Court will therefore be reversed, without remanding the cause.