121 Ill. 666 | Ill. | 1887
delivered the opinion of the Court:
This is debt, upon the bond of a circuit clerk. The breach alleged is, that an appeal was prayed from a judgment of the ■circuit court to the Appellate Court for the Third District, and allowed, upon condition of the appellants filing bond in the sum of §2000, with security to be approved by the clerk, within thirty days from the date of the rendition of the judgment; that a bond was executed, omitting the name of one of the appellees as a payee therein, and the clerk, without the form of said bond having been, in the first instance, approved by the circuit court, received the bond and approved the security, and transmitted the bond to the clerk of the Appellate Court for the Third District. A demurrer to the declaration was sustained hy the circuit court, and that judgment, on appeal to the Appellate Court for the Third District, was affirmed by that court, and the record is now here by appeal from this judgment of affirmance.
It is provided by section 67, of chapter 110, of.the Revised Statutes of 1874, that the appellant shall “give and file in the office of the clerk of the court from winch the appeal is prayed, bond, in a reasonable amount, to secure the adverse party, to-be fixed by the court, with sufficient security to be approved by the court.” And section 68 of the same chapter is: “The clerk of the court may, by order of the court, made at the time of praying the appeal, and entered of record, approve of the security offered upon such bond.” Before the enactment of these provisions, the circuit court had no authority to refer the question, of the approval of the security to the clerk. (Abraham v. Huntington, 19 Ill. 403; Mining Co. v. Pulling, 89 id. 68.) Sections-67 and 68, supra, are, in substance, re-enacted, and made applicable to appeals, etc., from the circuit court to the Appellate-Court, by the “Act to amend an act in regard to practice in courts of record,” in force July 1, 1877. (Laws of 1877, p, 149.) It is thus quite clear that the only question left to the determination of the circuit clerk, in the instance of which complaint is here made, is the sufficiency of the security offered. His judgment upon that question can, by no possibility, affect-the bond in any other respect, because its sufficiency ,is not, in any other respect, left to his determination. If the bond is-insufficient, his judging the security to be sufficient did not make, the bond insufficient, nor did that determination of his-preclude appellants from taking any action in the premises-which they would otherwise have taken.
It is said the bond was amendable. That may be, but the approval of the security by the clerk did not make it so when otherwise it would not have been entitled to be amended. The clerk did not, by placing his approval of the security upon the bond, and certifying it, give it a currency, other than as respects the sufficiency of the security, which it did not otherwise have.
The security upon the bond being sufficient, and approved by the clerk, the parties appealing were then either entitled to an appeal, as a matter of right, or the bond was insufficient to take the ease into the Appellate Court. In neither view was the clerk authorized to do any act to control or materially affect the rights of the respective parties, and any unauthorized act in that respect, if there was any such, was without legal effect.
We think the demurrer was properly sustained. The judgment is affirmed.
Judgment affirmed.