79 Ill. App. 339 | Ill. App. Ct. | 1898
delivered the opinion of the court.
By the pleadings the facts disclosed in this case are, that Albert Jenkins obtained from the city of Danville a license to keep a dram-shop in that city. In addition to the statutory bond, the city required of him and he gave the bond sued upon, which was in the penal sum of $1,000, agreed to be liquidated damages, conditional that Jenkins would observe and keep all the ordinances of the city. There was an ordinance of the city prohibiting the keeping open of dram-shops on Sunday and prescribing a penalty for its violation of not less than $50, nor more than $200. Jenkins violated that ordinance, and the city sued him before a justice of the peace therefor, and recovered a judgment of $50, which he paid. The city then brought this suit upon that bond to recover $1,000 for the same violation of the ordinance. The declaration was in debt, and to it the plaintiffs in error filed pleas numbered 1, 2 and 4, called in this record “ amended special pleas,” in which they set up in bar of the action, in different forms, the former recovery of a judgment by the city against Jenkins for the same violation of the ordinance mentioned in the declaration, and that he had paid the judgment before the suit-was commenced; also plea number 3, alleging that the bond sued on was given without warrant of law and is void; and plea number 5, alleging that for twenty years the city of Danville had construed the bonds given under the same ordinance of the city that the bond sued on was given, and of like tenor and effect, to be bonds of indemnity only, to secure the payment of fines incurred for violating the ordinances of the city, and when the bond sued on was given, the plaintiffs in error had relied upon that construction and that the city would so construe the bond sued on, and then averred the recovery of a judgment by the city against Jenkins for the same violation of the ordinance before this suit was commenced.
The court sustained a general demurrer interposed by the defendant in error to these pleas, and upon the plaintiffs in error standing by their pleas, gave judgment for $1,000 debt, and $1,000 damages, the judgment to be satisfied on payment of the damages. The plaintiffs in error sue out this writ of error to reverse this judgment, assigning as error that the demurrer to the pleas was improperly sustained.
The principal contention of the plaintiffs in error is, that while under the facts set forth in the declaration the city of Danville could recover from Jenkins the penalty prescribed by the ordinance for its violation by suing him either directly therefor, or by suing him and his sureties on the bond for the penalty prescribed by the bond, and a recovery of either penalty barred a recovery of the other, since the cause of action in either case was the same, to wit, the right to recover a penalty for keeping open his dram-shop on Sunday; yet, as the pleas, numbered 1, 2 and 4 disclosed the further fact that the city of Danville had, for the same cause of action mentioned in the declaration, recovered a judgment against Jenkins in a court of competent jurisdiction, which he has paid, the right of action in the declaration sought to be enforced had become res judieata, and these pleas set upa good defense and ought to have been sustained.
We think the plaintiffs in error are correct in this contention, because the matter directly in issue between the city and Jenkins, in the case set out in the pleas, which was reduced to judgment and is paid, according to the pleas, Avas the same violation of the same ordinance, and the amount of the penalty recoverable therefor in that case is one of the same questions involved in the case at bar, thus making the pleas set up a clear case of res judieata of the cause of action disclosed by the declaration, and therefore they ought to have-been sustained. The Duchess of Kingston’s case, 11 State Trials, 261, and Kitson v. Farwell et al., 132 Ill. 338-340.
We think the city of Danville may have had the poAver to require the bond it did of Jenkins, according to the facts stated in the declaration, and the plaintiffs in error having executed it according to the facts admitted by the pleadings, may be bound by its terms; yet, inasmuch as the city, according to the pleadings, has submitted the sam'e cause of action, i. e., the right to recover from J e'nkins a penalty, and how much, for keeping his dram-shop open on the particular Sunday mentioned in the declaration, to a court of competent jurisdiction, and secured an adjudication thereon, and received the fruits thereof, can not again open the same matter, as to do so Avould be a violation of the maxim that there must be an end to litigation.
As the liability of the sureties on the bond was secondary, and that of Jenkins, the principal, primary, the judgment set up in the pleas recovered against the principal was available to them as well as to him, under the doctrine of res judicata.
The demurrer was properly sustained to the third and fifth amended pleas, because the third plea set up only a conclusion of law without the necessary facts to justify it; and the fifth seeks to bind the city to a construction of the bond sued on as one of indemnity only, which is not its legal effect according to the express terms thereof, nor are the facts set up in the plea upon -which it is claimed the plaintiffs in error relied when they executed the bond sufficient to base an estoppel in pais.
Because the Circuit Court erred in sustaining the demurrer to the amended special pleas numbered 1, 2 and é in this case we reverse its judgment, and remand the case to that court with instructions to overrule the demurrer to said pleas and then proceed with the case according to law.
Reversed and remanded, with instructions.