George F. Harding & Firemen's Insurance v. Kuessner, 70 Ill. App. 355 (1897)

June 14, 1897 · Illinois Appellate Court

70 Ill. App. 355

George F. Harding and Firemen’s Insurance Co. v. Ferdinand Kuessner, for Use, etc.

1. Appeal Bonds—What is a Breach of.— The non-payment of the amount due upon a judgment which has been affirmed in part on appeal, a remittitur having been entered to the balance, is such a breach of the appeal bond as will support an action.

Debt, upon an appeal bond. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.

Heard in this court at the March term, 1897.

Affirmed.

Opinion filed June 14, 1897.

Wh. J. Ammen, attorney for appellants.

Nelson Monroe, attorney for appellee.

Mr. Justice Waterman

delivered the opinion of the Court.

This was an action brought upon a bond given upon an appeal to this court from a judgment rendered against the insurance company.

Upon such appeal, in this court, the plaintiff remitted the sum of $390.28, and "the judgment of the Superior Court was affirmed for $1,072.22. Appellants contend that as the judgment of the Superior Court was not affirmed in toto, and as the Firemen’s Insurance Company has taken an appeal from the judgment of this court, there has been no breach of the condition of its bond.

It does not appear from the record in this cause, here filed, that an appeal has been taken from the judgment of this court affirming the judgment of the Superior Court, upon appeal from which the bond was given. It was not necessary to aver or prove that no appeal had been taken. 2 Chitty’s Pleading, 484n.

The affirmance by this court of the judgment of the Superior Court for $1,072.22, and the failure to pay the same, constituted a breach of the condition of the bond.

The judgment of the Superior Court is affirmed.