192 Ill. App. 222 | Ill. App. Ct. | 1915
delivered the opinion of the court.
This is a suit on a stay of execution bond. The bond recites a judgment obtained by the Trinity Methodist Episcopal Church of Chicago against the Marie Methodist Episcopal Church of Chicago in a forcible detainer suit, and the condition of the bond is the prosecution of a writ of error with effect and compliance with the judgment and payment of costs and rent, in case of affirmance by the Appellate Court, from which the writ of error had been sued out. Plaintiff’s statement of claim alleged a breach in that the Marie Methodist Episcopal Church of Chicago had failed to prosecute with effect the said writ of error, in that said writ was dismissed by the Appellate Court, and that the defendants have not complied with the judgment and paid costs and rent as provided in said bond. To this defendants filed an affidavit of defense, which upon motion by plaintiff was stricken from the files. Defendants say this was error because by their affidavit they denied the breach alleged by plaintiff. In our opinion they did not sufficiently deny it. There is no denial of a failure to prosecute the writ of error with effect or that there has been no compliance with the judgment of the court with payment of costs and rent; the denial made simply g’oes to the dismissal of a writ of error from a judgment rendered in the Municipal Court against the particular defendant named in the bond, the judgment itself running against not only this defendant but two others. This was not sufficient, and there was no error in striking it from the files.
The point as to the power of plaintiff, a religious corporation, to recover rents from real estate cannot be made in this suit upon the bond. McCarthy v. Chimney Construction Co., 219 Ill. 616.
After the affidavit of defense was stricken and the entry of an order of default, the defendants requested the court to call a jury to assess damages, stating to the court that the damages were not liquidated. This motion was denied. Thereupon plaintiff requested that judgment be entered for $1,200 upon the statement of claim. Defendants’ attorney moved the court to hear evidence as to the amount of damages to be assessed, but the court denied this motion. The court then asked the attorney for the plaintiff as to the amount of the damages, and the attorney informed the court that the damages were $1,200, whereupon the damages were assessed at this amount “and judgment entered on statement of claim for $1,200, to be satisfied upon the payment of $1,200 damages.” These proceedings were erroneous. The defendants were entitled to have the damages assessed by a jury; it is so provided by section 59 of the Practice Act (J. & A. ¶ 8596). See Mann v. Brown, 263 Ill. 394, where it is held in effect that the only instance that might excuse the failure to assess damages by a jury, where one is demanded, is when the judgment can be “no more nor no less than the face of the bond.”. That is not the situation here, where the amount to be recovered, which includes rent, can only be determined from evidence.
As to any argument based upon the rules of the Municipal Court, we reassert that we cannot take judicial notice of such rules. Sixby v. Chicago City Ry. Co., 260 Ill. 478.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded.
