141 Ill. 395 | Ill. | 1892
delivered the opinion of the Court:
Whether an appeal “is prosecuted with effect” is not a question of fact, but a question of law, arising upon facts, and the familiar rule of pleading is, “facts only are to be stated in pleading, and not. arguments or inferences or matters of law.” 1 Chitty’s Pleading, (9th Am. ed;) 214; Kilgore v. Ferguson et al. 77 Ill. 213; People v. Crotty, 93 id. 180; Hatch v. Peet, 23 Barb. 583.
The averment that “on May 26, 1890, said suit was finally terminated by order of said circuit court then duly entered of record,” is manifestly insufficient to fix the liability of appellees, because the order so rendered may have been in favor of appellees; but by the terms of the bond they are liable only in the event that the “judgment from which the appeal was taken should be affirmed or the appeal dismissed.” The demurrer admits only those facts which are well pleaded. Gould's Pleading, chap. 9, part 1, sec. 5.
We concur in the ruling of the lower courts that the declaration was insufficient. The demurrer to it was properly sustained, and the judgment must therefore be affirmed.
Judgment affirmed.
