219 Ill. 616 | Ill. | 1906
delivered the opinion of the court:
The pleas, to which demurrers were sustained, allege that, at and up to the time of the execution of the appeal bond sued upon, the appellee, although a foreign corporation and doing business in Illinois, had not complied with the requirements of the statute of Illinois, which are essential to its right to transact business in Illinois, or maintain actions in Illinois courts; and, for this reason, the pleas allege that the judgment, in the appeal bond recited, and the appeal bond itself are null and void.
It is recited in the declaration and in the bond that on February 10, 1902, appellee obtained in the superior court of Cook county a judgment against L. L. Leach & Son for $4258.25, besides costs of suit, from which judgment L. L. Leach & Son prayed for and obtained an appeal to the Appellate Court. It is averred in the declaration that, on November 12, 1903, this judgment was affirmed by the Appellate Court. In view of these allegations, the pleas demurred to set up no valid defense. The defense was, that the appellee, being a foreign corporation, had not complied with such requirements of the statutes of this State, as authorized it to do business in this State, and to bring or maintain actions in the courts of this State.
The suit at bar, being an action upon the appeal bond, is a collateral proceeding, so far as the original judgment of appellee against L. L. Leach & Son is concerned. It does not appear whether or not the defense, here sought to be set up to this action upon the appeal bond, was actually set up in the original suit, brought by appellee against L. L. Leach & Son. The defense of non-compliance with the statute in question may have been raised in the main suit, so far as the present record shows. If it was so raised, the judgment in that case is an adjudication against such defense. If it was not so raised in the original suit, it is too late to raise it in the present action, and in this court. In Holmes v. Standard Oil Co. 183 Ill. 70, it was said: “Whether the appellee company had failed to comply with the requirements of the act relating to foreign corporations, approved May 26, 1897, * * * and for that reason was without standing to maintain an action in the courts of this State, was not raised at the hearing. It does not appear any ruling was sought or obtained in the trial court as to the question. There is, therefore, nothing upon which to base an assignment of error in that regard in a court of review.”
The declaration in the case at bar shows upon its face that the judgment, mentioned in the appeal bond, from which an appeal was taken to the Appellate Court, was affirmed by the Appellate Court. Such judgment of affirmance by the Appellate Court is conclusive as to the validity of the judgment, from which the appeal was taken to the Appellate, Court. In Keithsburg and Eastern Railroad Co. v. Henry, 90 Ill. 255, the action was on an appeal bond in the penal sum of $2500.00, and was subject to a condition thereunder written, in which it was recited that the appellee therein recovered a judgment against the Keithsburg and Eastern Railroad Company, from which judgment the company had taken an appeal to the Supreme Court, and that, if the company should prosecute its appeal with effect, and should pay the judgment, costs, interest and damages in case the judgment was affirmed, then the bond should be void, otherwise to remain in full force and effect; and we there said: “It is proved the judgment was afterwards affirmed in the Supreme Court. * * * The judgment of the Supreme Court is conclusive as to the validity of the judgment appealed from, and no inquiry can be had in this collateral proceeding as to the merits of the original controversy, nor even as to the validity of the judgment itself.”
The recitals of the bond sued upon are conclusive as to the validity of the judgment, mentioned in the bond. In Smith v. Whitaker, 11 Ill. 417, which was an action in debt upon an appeal bond, and where the third plea filed was “that there is not any record of the said supposed judgment, rendered by the said justice, remaining on the docket of the said justice in his court, in manner and form as recited in the condition of the said writing obligatory;” it was there .said by this court: “Was the demurrer properly sustained to the third plea? The plea alleges, in,substance, that there was no such judgment before the justice, as is recited in the condition of the bond sued on. The defendant was estopped by the record from making such an allegation. The bond is set out in the declaration, and it distinctly states that a judgment had been rendered by the justice. The very object of the parties in executing the bond was to prevent the collection of the judgment, and have the case re-heard in the circuit court; and the bond was expressly conditioned for the payment of the judgment, in the event it should be affirmed. It was, therefore, a solemn admission by the defendant that there was such a judgment. He voluntarily entered into an engagement under his hand and seal for the payment of the judgment; and he could not afterwards deny what he thus deliberately asserted to be true—the existence of the judgment. The principle of estoppel is clearly applicable. The fact, which concluded the defendant from making the denial, appeared on the face of the declaration; and the estoppel was rightly insisted on by demurrer. Where the matter, which operates as an estoppel, appears in the declaration, the plaintiff may demur to a plea, by which the defendant attempts to set up the same matter as a defense. But, if the matter of estoppel does not appear on the face of the declaration, the plaintiff must, by a replication to the plea, expressly show such matter, and rely thereon.”
In Harding v. Kuessner, 172 Ill. 125, it was said: “It is familiar law the obligors in an appeal bond are estopped to deny the recitals of the bond.” (See also Arnott v. Fricl, 50 Ill. 174; George v. Bischoff, 68 id. 236; Herrick v. Swartwout, 72 id. 340).
So, in the case at bar, the appeal bond recites the existence of the judgment, and appellant is estopped from denying that there was such a judgment, or that it was void. The appellant here, as surety, voluntarily signed the engagement under his hand and seal for the payment of the judgment, and could not, therefore, deny the existence of the judgment, which he admitted by so signing the bond. This matter of estoppel appears upon the face of the declaration, so that the question is raised by appellee’s demurrers to the pleas, by which appellant has attempted to set up the same matter as a defense.
The bond was executed in order to enable the parties, who signed it, to take an appeal from the judgment to the Appellate Court. The bond recites that the appeal had been prayed for and obtained, and provides that the bond is void in case the appeal' is prosecuted with effect. Hence, the appellant in this suit upon the bond cannot be heard to say that no appeal was ever taken; nor can he be permitted to question the truth of the recitals in the bond. The bond in question is a voluntary contract. The expenses incurred by appellee in defending the appeal on the faith of the bond are a sufficient consideration for entering into it. (Meserve v. Clark, 115 Ill. 580; George v. Bischoff, supra).
It is true that appellant is a mere surety upon the bond; but “in an action on an appeal bond the obligors and sureties are estopped from setting up defenses that contradict the recitals therein.” (24 Am. & Eng. Ency. of Law,—2d ed.—p. 67; Arnott v. Friel, supra; Shaw v. Havekluft, 21 Ill. 127).
Not only is it true that nul tiel record is a bad plea to an action upon an appeal bond under the authorities above referred to, so that the validity of the judgment, recited in the bond, cannot here be open to question, but the execution of the bond here sued upon cannot be said to be the act of the appellee. The bond was voluntarily executed by L. L. Leach & Son, as principal, and appellant, as surety. When executed the bond was filed in court. L. L. Leach & Son were not bound to take an appeal, nor was appellant compelled to sign the bond as surety. Appellee’s consent to the execution of the bond was not required, so that the giving of the bond was not in any sense the act of appellee. If the bond had not been given, appellee could have had execution under its judgment, but, by reason of the giving of the bond, was compelled to follow the case to the Appellate Court. This action was involuntary on the part of appellee. It cannot be said, therefore, that the execution and filing of this appeal bond by L. L. Leach & Son and the appellant constituted a “transaction of business” on the part of the appellee. It is to be noted that the. pleas do not allege, that, up to the time of instituting the suit upon the appeal bond, appellee had failed to comply with the requirements of the statute, but the pleas allege such non-compliance with the statute at and up to the time of the execution of the appeal bond sued upon. The question is not whether, at the time when the appeal bond was executed, the appellee was a duly licensed foreign corporation, but the only question, which can be raised in this case, is whether, at the time of beginning this suit on the appeal bond, appellee was a duly licensed foreign corporation. There is no allegation in the pleas that, at the time of beginning the suit on the appeal bond, appellee had not complied with the requirements of the statute, but only that at the time of the execution of the bond it had not so complied. Its rights are to be determined as of the date of the beginning of the suit. (Thompson Co. v. Whitehed, 185 Ill. 454). For the reasons above stated, we are of the opinion that the demurrers to the pleas were properly sustained by the trial court, and, inasmuch as appellant stood by his pleas, that the judgment of the court was correct.
In the case at bar, upon the appeal to the Appellate Court, the Appellate Court in its judgment has not only affirmed the judgment of the superior court of Cook county, but it has also ordered “that appellee recover of and from appellant the sum of $212.91 for its damages upon the amount of said judgment, and its costs to be taxed, and have execution therefor.” Upon this subject the Appellate Court say in their opinion: “The court is of the opinion that the inference is warranted from the record that this appeal was prosecuted for delay, and therefore affirms the judgment with additional damages $212.91, (being five per cent of the damages assessed below), in addition to the costs.” Complaint is made by appellant of this action of the Appellate Court in thus allowing damages. In Baker v. Prebis, 185 Ill. 191, we held that, under section 23 of the act on costs, when read in connection with section 10 of the Appellate Court act, the Appellate Court may assess damages against a party who has prosecuted an appeal or writ of error merely for delay; and that this court will not review the exercise of the Appellate Court’s discretionary power in assessing damages for prosecuting an appeal for delay, in the absence of any showing that such power has been abused. There is no evidence here of any abuse of such power.
Accordingly, the judgment of the Appellate Court, including the allowance of damages, is affirmed.
Judgment affirmed.
