Lutz v. Schmidt, 16 Ill. App. 477 (1885)

May 23, 1885 · Illinois Appellate Court

16 Ill. App. 477

George Lutz and Julius P. W. Reck, Adm’r etc., v. John Schmidt.

Debt on appeal bond — Misjoinder.—In an action of debt on an appeal bond, it is improper to sue the administrator of the deceased obligor jointly with the survivor. Such misjoinder is fatal on error.

Appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.

Opinion filed May 23, 1885.

Mr. L. W. Brewer, for appellants.

Messrs. Snow & Stead and Mr. D. A. Cook, for appellee.

Pleasants, P. J.

Debt on an appeal bond executed by appellant Lutz as principal and Anton Reck as surety, in a proceeding for forcible entry and detainer. Upon trial by the court without a jury the issue was found for the plaintiff and his damages assessed at $321.21, upon which judgment was rendered against the defendants jointly, in debt for the penalty, to be discharged on payment of the damages in due course of administration.

We see no great force in the points here urged on behalf of appellants; but in the like case of Eggleston v. Buck, 31 Ill. 254, it was held improper to sue the administrator of the deceased obligor jointly with the survivor; that no good judgment could be rendered for the plaintiff therein, because one of the defendants was chargeable de bonispropriis and the other only de bonis testatoris, and that the misjoinder was fatal on error, citing 1 Ch. Pl. 50.

For that reason the judgment here will be reversed and the cause remanded.

Reversed and remanded.