Perkins v. Klein

Mr. Justice Waterman delivered the opinion of the Court. The judgment of this court having been affirmed by' the Supreme Court, more than ten days after such affirmance, suit was begun upon the bond given by appellee. When suit was so begun default on said bond had been made by appellee. The condition of the bond gave to him ten days after affirmance within which to pay the amount mentioned in said bond or surrender Berkson. Appellee did neither. Instead of this, he waited for the result of a petition for rehearing. On December 5th, twenty days after the present suit was begun, and nearly a month after his default, he obtained from the Supreme Court a stay from its judgment. Appellee was then entitled to, and obtained, a stay of proceeding in this suit. On March 21, 1895, the Supreme Court overruled the petition for rehearing; thereupon, Berkson having, March 22, 1895, surrendered himself, appellee filed the aforesaid plea. This plea does not deny the allegation of the declaration that the judgment of the Appellate Court was affirmed by the Supreme Court on the 29th day of October, 1891; instead of this, departing therefrom, it sets up the filing in the Circuit Court of an order of affirmance of the judgment of that court by the Appellate Court, and that the Appellate Court issued its said order upon a judgment and order of affirmance made by the Supreme Court March 21, 1895; and that no order of affirmance nor certified copy thereof was filed in said Circuit Court until the 22d day of March, 1895; and thereafter, the surrender of Berkson. The plea does not set up performance of the condition of the bond. The condition is not that the obligation'shall be void if Berkson surrender himself in ten days after the denial of a petition for a rehearing, or after the filing in the Circuit Court of an order affirming its judgment. The judgment of the Appellate Court, mentioned in the bond, was affirmed October 29, 1891. Not when the partition for rehearing was denied. Lester v. The People, 150 Ill. 108-127. It is urged that Berkson could not surrender himself until an order affirming the judgment of the Circuit Court had been filed in that court. If such be the case, appellee could have procured and filed the orders within ten days after the judgment of affirmance, October 29th, as well as to file them, as he did, within ten days after the order denying the petition for rehearing. As to surrender without such order, see Greenwaldt v. Krauss, 118 Penn. St. 517-523; Saunders v. Quiggs, 112 Penn. 516; Marks v. Drovers National Bank, 114 Penn. 490. The filing of a certified copy of the order of affirmance was not necessary to the maintenance of an action on the bond. City of Cairo v. Everett, 107 Ill. 75; Smith v. Stephens, 133 Ill. 83; City of East St. Louis v. Renshaw, 153 Ill. 191; Sutherland v. Phelps, 22 Ill. 29. The judgment of the Superior Court is reversed and the cause remanded.