Koelling v. Wachsning

Mr. Justice Barnes delivered the opinion of the court. This was a suit against a surety on an appeal bond, the validity of which and of the judgment appealed from defendant sought to question by special pleas to which demurrers were sustained. Various errors are assigned, but as none are argued except such as relate to the ruling sustaining said demurrers, the others are waived and will not be considered. Wabash, St. L. & P. R. Co. v. McDougal, 113 Ill. 603; Keyes v. Kimmel, 186 Ill. 109. The defendant could not question by plea the validity of a judgment, the existence of which was admitted by recitals in the bond he executed and which were set out in the declaration. “It is familiar law,” says the court in Harding v. Kuessner, 172 Ill. 125, “the obligors in an appeal bond are estopped to deny the recitals of the bond.” In such a case the principle of estoppel is clearly applicable and rightly insisted on by demurrer. Smith v. Whitaker, 11 Ill. 417; McCarthy v. Chimney Construction Co., 219 Ill. 616. The record discloses that the appeal was dismissed by the Supreme Court. The dismissal of an appeal has been held to be equivalent to a technical affirmance of the judgment appealed from so as to entitle the party to claim a forfeiture of the bond and have his action therefor. Sutherland v. Phelps, 22 Ill. 92. That the appeal was dismissed on appellant’s own motion and “without prejudice,” does not present a state of facts calling for a different conclusion. Nor can the obligor be heard to say that the appeal is a nullity and thus question the truth of the recital in the bond that the appeal was obtained. He is bound by such recital. Meserve v. Clark, 115 Ill. 580. It is evident, too, that he cannot question in a collateral proceeding like this the finality of the order appealed from dismissing the bill as to part of the defendants thereto, or whether the Supreme Court had jurisdiction thereof. Nor can he plead a want of consideration for the bond, inasmuch as the filing of it operated to stay an execution of a judgment for damages sustained in procuring a dissolution of an injunction granted in the proceeding. “The bond was voluntarily executed. It was executed in consideration of the appeal, and the effect of the appeal was to stay proceedings on the judgment. This was a sufficient legal consideration.” Mix v. People, 86 Ill. 329; George v. Bischoff, 68 Ill. 236. It is urged that this appeal is a vexatious one and within the intendment of the statute authorizing the addition of ten per cent, to the amount of the judgment, if the court is of the opinion that the appeal has been prosecuted for delay. We fail to see any excuse for an appeal which in effect simply asks for a reconsideration of familiar and well settled principles of law. The judgment below for $251.12 and costs will be affirmed, and $25.11, being ten per cent, thereof, will be added to said judgment for vexatious delay. Affirmed.