Flack v. Moore, 117 Ill. App. 551 (1905)

Jan. 6, 1905 · Illinois Appellate Court · Gen. No. 11,452

117 Ill. App. 551

John Flack v. William A. Moore.

Gen. No. 11,452.

1. Stay order—toben refusal to grant, upon application of one who has filed Ids petition in bankruptcy, is not error. A defendant in a judgment rendered by a justice of the peace who has appealed to the Circuit Court and has filed his petition in bankruptcy, cannot complain of the action of the judge of such Circuit Court in refusing to stay the proceedings in such cause where, upon final hearing, he having in the meantime been discharged as a bankrupt, he is granted a perpetual stay of execution, inasmuch as the plaintiff is entitled to his remedy against the surety upon the appeal bond.

2. Error—when, cannot be complained of. An appellant is not permitted to take advantage of an error which does not injuriously affect him.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

Affirmed.

Opinion filed January 6, 1905.

Statement tty the Court. Appellee recovered a judgment against appellant before a justice of the peace and appellant took an appeal to the Circuit Court. Pending the appeal appellant was adjudicated a bankrupt in the District Court of the United States. He then moved that the suit be stayed until the question of his discharge in bankruptcy should be determined and the court overruled his motion. The trial resulted in a verdict against appellant for $47.97. His motion for a new trial was denied and judgment entered on the verdict with an order that execution be perpetually stayed and that a writ of seire facias issue against the surety in the appeal bond, and from that judgment the defendant took this appeal.

Thomas J. Talbot, for appellant.

No appearance by appellee.

Mr. Presiding Justice Baker

delivered the opinion of the court.

If the court had stayed the suit and the defendant had thereafter received his discharge in bankruptcy, the plaintiff would then have been entitled to proceed to judgment against him for the purpose of charging the surety in the appeal bond, but the defendant would have been entitled to an order for the perpetual stay of execution. If he had failed to obtain a discharge, the plaintiff would have been entitled to a general judgment against him. Hill v. Harding, 116 Ill. 92.

Appellant, by the perpetual stay of execution on the judgment in this case, has obtained all the relief he could have obtained had the suit been stayed until after his discharge in bankruptcy. Nothing is better settled than that one is not permitted in a court of review to take advantage of an error that does not injuriously affect himself. Bowman v. V. & C. Ry. Co., 102 Ill. 459; Short v. Raub, 81 Ill. 509.

The judgment of the Circuit Court will be affirmed.

Affit'med.