Kotite v. Title Guaranty & Surety Co.

Mr. Justice Baker delivered the opinion of the court. Plaintiffs Kotite and Farhood recovered a judgment in the Municipal Court against one Gazelle for $297.55 and costs April 11, 1912. Gazelle then gave a stay bond with the defendant as surety in the penal sum of $500, conditioned that if Gazelle “shall duly prosecute said writ of error with effect, and moreover pay the amount of the judgment, costs, interest and damages rendered, and to be rendered, against him in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.” The judgment against Gazelle was affirmed by this court February 2, 1914. This action was then brought against plaintiff in error, the surety in the bond, and plaintiff had judgment for $342.30. The only ground of reversal argued in the brief of plaintiff in error is that the surety was released from the obligation because the bailiff, on the filing of the stay bond, delivered possession of the property levied on to the defendant in the execution. We think it was the duty of the bailiff to return the property to the judgment debtor when the stay bond was given. Paragraph 1 of section 23 of the Municipal Court Act (J. & A. K 3335) provides that a party who may desire to obtain a review of a judgment and also desires a stay of execution may obtain a stay of execution for ninety days by the giving of a bond with surety conditional for the prosecution of such writ of error, and otherwise as near as may be as an appeal bond in case of an appeal from a judgment of a Circuit Court. The judgment debtor used the bond here sued on to procure a review by this court of the judgment against him, and the surety by joining in the bond enabled him to do so, and having obtained all the benefit of the bond, they should be estopped from denying that it is a binding obligation. Mix v. People, 86 Ill. 329, where it was said: “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; and, since the execution of the bond was neither prohibited by statute nor is contrary to the policy of the law, it is a good common law obligation. As we said in Courson v. Browning, 78 Ill. 210, Mix ‘used this appeal bond to procure a trial in this court, and his security enabled him to do so by joining in its execution; and, having obtained all the benefits of the bond, they should be estopped from denying that it is a binding obligation, unless it contravenes some statute or some rule of public policy, neither of which was done by the execution of this bond. ’ ” See also Meserve v. Clark, 115 Ill. 580; Daniels v. Tearney, 102 U. S. 415. The case is not one where the plaintiff in the execution releases property levied on. Admitting that the law providing for the giving of a stay bond is unconstitutional, the plaintiff in error cannot aver its ixnconconstitutionality as a defense. Mix v. People and Daniels v. Tearney, supra. Our conclusion is that the amended affidavit of defense fails to show a defense to the action and was properly stricken from the record and judgment entered on plaintiff’s affidavit of claim as in case of default. We further think that this writ of error is prosecuted for delay. The judgment is affirmed with $22 damages and costs. Affirmed with damages and costs.