70 Ill. App. 596 | Ill. App. Ct. | 1897
delivebed the opinion OF THE CoUBT.
A finding for defendant upon the plea of former recovery was erroneous. The parties to the judgment pleaded, were not parties in the same capacity as those in this suit and the issues were not identical.
There were two distinct causes of action against Paquin; one in favor of Franchere, by reason of the recovery and payment of the judgment against him on the appeal bond of Paquin, and one in favor of the Opera House Company for rents over and above the amount of the appeal bond. Thp failure of the Opera House Company to invoke the aid of the court to require the defendant in the forcible detainer appeal suit to give additional bond, when it became apparent that before the case would be reached for trial rents would accrue which would exceed the amount of the bond, did not preclude the Opera House Company from a right to recover for rent above the amount of the bond.
The fact that the Opera House Company, in its suit upon the appeal bond, recovered for rents up to the amount of the bond, $500, did not debar it from recovering in a suit against Paquin alone for the $391 additional rent. It is absurd to say that having elected to sue on the bond for rents it thereby elected to abandon all further claim against Paquin.
At the time suit was brought upon the appeal bond the Opera House Company had two separate causes of action for rent; one upon the appeal bond against Paquin and his surety Franchere, and another against Paquin for rent accruing during the pendency of the appeal suit above the amount of the bond.
There should have been a recovery for appellant. ¡Reversed and remanded.