Warnock v. Russell, 2 Ill. 383, 1 Scam. 383 (1837)

Dec. 1837 · Illinois Supreme Court

2 Ill. 383, 1 Scam. 383

John Warnock, appellant v. William Russell, appellee.

Appeal from the Municipal Court of the City of Alton.

A security for costs, entitled “ The same v. The same,” is insufficient.

The record in this case shows that a precipe was filed in the Court below, in an action commenced by Russell against Warnock, and that

“ Afterwards, to wit, on the same day and year aforesaid, and at the place aforesaid, the plaintiff in this cause, by Davis & D’Wolf, his attorneys, filed in the Clerk’s Office of said Court, the following bond for costs, which said bond is in the words and figures following, to wit,

“ The Same v. The Same.

We hereby enter ourselves as security for costs in this entitled cause, and acknowledge ourselves bound to pay all costs that may accrue either to the opposite party or to any of the officers of this Court, in pursuance of the laws of this State.

Davis & D’Wolf.”

Alton, Sept. 4th, 1837.

At the October term, 1837, of the Municipal Court of the City of Alton, the Hon. Wm. Martin presiding, a motion was made by the defendant in the Court below, to dismiss the cause because no security for costs was filed. This motion was overruled. Judgment was rendered for the appellee, from which the appellant appealed to this Court.

U. F. Linder, for the appellant.

A. Cowles, for the appellee.

Smith, Justice,

delivered the opinion of the Court:

The appellant, who was the defendant in the Court below, by his counsel, moved to dismiss this cause, because the plaintiff, at and before the institution of this suit, was a non-resident of this State, and did not, before or at the commencement of the suit, file such a bond for costs as is required by the statute. From the facts disclosed by the bill of exceptions, it satisfactorily appears that the plaintiff was a non-resident; and the only question to be decided, is, whether the bond filed as security for costs, is sufficient.

The objection to the bond, is, that it does not appear in what cause the paper purporting to be a bond, is given, nor who the parties to the action are. The entitling the cause, “ The Same v. The Same,” being entirely isolated and disconnected with the names of any parties to any other cause, none such appearing, cannot admit of any interpretation to aid the defect by a reference to another cause between the parties to this action.

The Municipal Court should have dismissed the cause; and not having done so, the judgment of the Municipal Court is reversed, with costs of this Court and the Court below.

Judgment reversed.