88 Ill. App. 586 | Ill. App. Ct. | 1900
delivered the opinion of the court.
In order to sustain the judgment in this case, it must, as we think, be assumed that appellee was seeking to enforce an affirmative right which appellants were attempting to deprive him of, and that appellee has secured the right through his superior diligence. But in what does this affirmative right consist? He is complaining of no wrong done him, or that he has been deprived of any right belonging to him. He came into court unwillingly, and to the complaint that the principal in the bond for whom he was surety, did not keep and perform his covenants by paying over the money that came into his hands by virtue of his office, he answers by his pleas, that the principal did keep and perform the covenants of the bond, and if this answer be true, appellee gains nothing by it except to be let alone, which is a mere negative right, and that belongs to all men who keep and perform their covenants.
There was no issue to be tried, and none was tried; and the most that can be said, in our opinion, is that the plaintiffs had made default in prosecuting their case; but it does not therefore follow that the defendant was entitled to a judgment on the merits of the case. What the defendant was entitled to was, that the suit should be dismissed for want of prosecution, and the court erred in rendering the judgment it did. Peck v. Hubbard et al., 4 Ill. App. 566; Caldwell v. McCay, 65 Ill. App. 405; Williams v. Brunton et al., 3 Gil. 600; Delano v. Bennett, 61 Ill. 83; Seavey v. Rogers, 69 Ill. 534.
When appellants filed their motion to vacate the judgment, the attention of the court was called to the error it had made, and it should have rectified the error by sustaining the motion; and its refusal to do so was error.
For the errors indicated, the judgment is reversed and the cause remanded.
