Stirlen v. Neustadt, 50 Ill. App. 378 (1893)

Aug. 4, 1893 · Illinois Appellate Court

50 Ill. App. 378

Stirlen v. Neustadt.

Peactice—Bill in Chancery—Verification.—Where a bill was verified by the complainant swearing that he had “read the same and knows the contents thereof, and that the same is true of his own knowledge except as to the matters stated therein on information and belief, and as to those he believes it to be true,” it was held that the verification was insufficient.

Peactice—5ÍB in Chancery—Defective Verification—Nunc Pro Func Amendment.—A bill in chancery was improperly verified. After an appeal had been taken to the Appellate Court, the complainant applied to the court below for leave to file an amended bill properly verified nunc pro tunc as of a date prior to the perfecting of the appeal, and also moved the Appellate Court for leave to file an additional record showing the order of the court below and amended bill. It was held that the defect could not be remedied in that way; the order appealed from must stand or fall according to the record, as it was when the appeal was perfected.

8. Practice—Appellate Proceedings—Nunc Pro Tunc.—Omissions in matters of form can be supplied nunc pro tune, after appeal, in order to perfect the record, but a new case for consideration can not be. made.

4. Injunction—Bonds Required by Statute.—An, injunction bond conditioned only for the payment of “ all such costs and damages as shall be awarded ® * * in case the said injunction be dissolved,” is not such a bond as the statute requires to be given before an injunction issues to enjoin the collection of a judgment.

5. Injunctions—Damages on Dissolution.—The concluding paragraph of section 8, chapter 69, R. S.. which provides for the awarding against the complainant of costs, and damages not exceeding ten per centum of the amount of the judgment, in case the injunction is dissolved, does not authorize the court to include in the assessment of damages upon such dissolution, the amount of the judgment restrained. The damages that can be awarded in such a proceeding are limited by the statute to ten per cent of the amount of the judgment.

Memorandum.—Bill for injunction. Appeal from the Superior Court of Cook’County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1893.

Reversed and remanded.

Opinion filed August 4, 1893.

The statement of the facts is contained in the opinion of the court.

Samuel B. King, attorney for appellant.

¡Newton Wyeth, attorney for appellee.

Opinion oe the Court,

Shepard, J.

This appeal is from an order granting an injunction enjoining the collection of a judgment. The bill was verified by the complainant, who swore that he had a read the same and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters stated therein on information and belief, and as to those he believes it to be true.”

That form of verification has been repeatedly condemned by this court. Brabrook Tailoring Company v. Belding, 40 Ill. App. 326, and cases there cited.

We are aware of no recognized precedent that sanctions such a form of verification. 3 Daniell’s Ch. Pl. and Pr. 2171; 1 Barbour’s Ch. Pr. 44; Puterbaugh’s Ch. Pl. and Pr. (3d Ed.) 490.

What matters there may be in the bill that are stated on information and belief can only be known by probing the mind of the pleader; but matters that are stated to be on information and belief, can be ascertained by reference to the bill.

The appellee has undertaken to cure the defect by filing in the Superior Court, by leave of that court, an amended bill properly verified, nuno pro tuno, as of a date prior to the perfecting of the appeal to this court; and has moved this court for leave to file here an additional record showing that order and said amended bill. The defect can not be remedied in that way; the order appealed from must stand or fall according to the record as it was when the appeal was perfected. L. S. & M. S. Ry. Co. v. C. & W. I. Ry. Co., 100 Ill. 21.

It may be that omissions in matters of form can be supplied nuno pro tunc, after appeal, in order to perfect the record, but a new case can not be made.

There is another reason why the order appealed from must be reversed.

Sec. 8, Ch. 69, R. S., entitled injunctions, requires that before an injunction shall issue to enjoin a judgment, the complainant shall give a bond with surety, “ conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved.”

The bond so required is for payment of the judgment, i. e., “ all moneys and costs due to the plaintiff in the judgment,” as well as for all damages which may be awarded in case of a dissolution of the injunction.

The bond that was given is conditioned for the payment only of “ all such costs a id damages as shall be awarded * * * in case the said injunction be dissolved.” It contains no condition for the payment of the judgment, and therefore is not such a bond as the statute requires shall be given before an injunction shall issue to enjoin the collection of a judgment.

The concluding paragraph of said section eight, which provides for the awarding against the complainant of costs, and damages not exceeding ten per centum of the amount of the judgment, in case the injunction be dissolved, does not authorize the court to include in the assessment of damages upon the dissolution of the injunction, the amount of the judgment restrained. The damages that can be awarded in such a proceeding are limited by the statute to ten j-er cent of the amount of the judgment. Roberts v. Fahs, 36 Ill. 268; Joslyn v. Dickerson, 71 Ill. 25; Camp v. Bryan, 84 Ill. 250.

We will not discuss the point argued as to whether the bill states a case for equitable relief.

The motion for leave to file the additional record is denied, and the order of injunction is reversed and the cause remanded.