Tedrick ex rel. Ruffner v. Wells
152 Ill. 214
Ill.
1894
Check Treatment
Mr. Justice Baker

delivered the opinion of the court:

J. E. Tedrick, for the use of H. N. Ruffner, Hulmán & Co., Robinson, Zimmerman & Co., and Hendrickson, Lefler & Co., brought debt on a replevin bond against M. D. Wells and others. The court overruled a demurrer of the plaintiff to the pleas of the defendants, and the plaintiff abided by his demurrer, and a judgment was rendered against him for costs. Thereupon the following further order was made and entered in the cause, to-wit: “To the rendering of which judgment the plaintiff excepts, and prays an appeal to the Appellate Court for the Fourth District, which is granted by the court upon plaintiff filing bond, within sixty days, in the sum of $250, said bond to be approved by the clerk of this court.” Within the time limited, Herman Hulmán, Anton Hulmán, Benjamin S. Cox, John C. Zimmerman for Robinson, Zimmerman & Co., Alonzo P. Hendrickson, Charles W. Lefler and William B. Wright executed and filed an appeal bond in the required sum, which was approved by the clerk of the court.

The appeal was, on motion, dismissed in the Appellate Court because the appeal was not taken or bond filed by J. E. Tedrick, as provided by the order of the circuit court granting the appeal. Thereupon a motion was made for leave to file an amended appeal bond, in support of which motion an appeal bond signed by J. E. Tedrick was presented in the Appellate Court; but the Appellate Court refused the motion, on the ground that Tedrick had not filed his appeal bond within the time fixed by the order of the circuit court for filing the samé, and made no attempt within that time to take or perfect his appeal.

Although Tedrick was only the nominal plaintiff, yet the legal right of action was in him, alone. This proposition is conceded. But it is urged that a nominal plaintiff can not dismiss the suit or otherwise prevent a hearing on its merits, and Sumner v. Sleeth, 87 Ill. 500, is cited in that behalf. The case announces that doctrine, but we are unable to see its application here. If we comprehend counsel, their claim is, that equitable or use plaintiffs have the right to take and perfect appeals, and in doing so to execute and file appeal bonds. That question does not arise on this record, and any expression of opinion by us in regard to it would be mere dictum. H. N. Ruffner and the other usees did not pray an appeal, nor did any or either of the beneficial plaintiffs make such a prayer, and no appeal was allowed to all, or any, or either of them. The right of appeal is strictly a statutory right, and it can only be taken when allowed by the court, and in conformity with the order of the court. Carson v. Merle et al. 3 Scam. 168 ; Ryder et al. v. Stevenson, 3 id. 539 ; Watson v. Thrall, 3 Gilm. 69 ; Johnson et al. v. Barber, 4 id. 1; Propeller Niagara v. Martin, 42 Ill. 106; Chicago, Pekin and Southwestern Railroad Co. v. Trustees, 104 id. 91 ; Hileman v. Beale, 115 id. 355 ; People v. Leaton et al. 121 id. 666. The bond must be filed by the person praying for and obtaining the order for appeal. (Propeller Niagara v. Martin, supra.) Where an action brought in the name of one person for the use of another is appealed, the nominal plaintiff must be properly in court before a judgment can be rendered in the case. (McCormick v. Fulton, use, etc. 19 Ill. 570.) The words “for the use, etc.,” are unnecessary for any purpose other than to protect the interest of the usee against the nominal plaintiff. (Hobson v. McCambridge, 130 Ill. 367.) In the case at bar it was “the plaintiff,”—that is, J. E. Tedrick,—-that prayed the appeal, and it was the appeal of said plaintiff that was granted “upon plaintiff filing bond within sixty days."

It was not error to sustain the motion to dismiss the appeal that was unadvisedly taken by some of the usees.

Section 69 of the Practice act provides that no appeal shall be dismissed by reason of any informality or insufficiency of the appeal bond, if the party taking such appeal shall, within a reasonable time to be fixed by the court, file a good and sufficient appeal bond in such cause, to be approved by the court; and it is urged that the record shows that a good and sufficient appeal bond, signed and sealed by Tedrick, the plaintiff, was tendered to the Appellate Court, and that the law is, that an informal bond perfects an appeal, and may be amended. But here, Tedrick, the plaintiff, took no appeal, and made no attempt to do so by filing a, bond, informal or otherwise, or by filing any paper that purported to be a bond. He, therefore, is not within the statute, for that makes provision for the case of “the party taking such appeal,” and for the case of such party, only. The failure of Tedrick to file a bond within the time fixed by the order allowing the appeal was fatal to his right of appeal. Carson v. Merle, 3 Scam. 168; Price v. Pittsburg, Ft. Wayne and Chicago Railroad Co. 40 Ill. 44; Wormley v. Wormley, 96 id. 129.

Appellant cites three cases as sustaining. a right to file a new bond signed by Tedrick. Bassett v. Bratton, 86 Ill. 152, is not in point, for here the plaintiff had no bond to amend. You can no more amend a thing that has no existence,—not even potential,—than you can amend a void thing ; and we know of no way in which you can, on the 28th day of August, 1893, transform a bond executed by Hulmán, Zimmerman, Hendrickson and Lefier, into a bond signed by Tedrick prior to the 23d day of May of that year. In Propeller Niagara v. Martin, 42 Ill. 106, an order was made allowing an appeal to John V. Dellor and Samuel H.. Dellor. An appeal bond was executed onty by one Spencer and one Rea. The appeal was dismissed because the bond was not executed in conformity with the terms of the order granting the appeal. We are unable to see how the fact that in that case no cross-motion was made to amend the bond, is any authority for holding that the Appellate Court committed error in this case by not allowing Tedrick to file an appeal bond in that court more than three months after the expiration of the time fixed by the circuit court for his so doing, and that, too, when Tedrick had made no attempt to file a bond within the sixty days allowed him for that purpose. In Miller v. Superior Machine Co. 79 Ill. 450, the appeal bond both purported to be and was the bond of the company, and the fact that the court there says that even if the bond had been defective it might have been amended, is of no moment in the matter now before üs.

The Appellate Court committed no error in refusing Tedrick permission to file the proffered bond.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.