Hubbard v. Freer, 2 Ill. 467, 1 Scam. 467 (1838)

Dec. 1838 · Illinois Supreme Court
2 Ill. 467, 1 Scam. 467
Gurdon S. Hubbard and Henry G. Hubbard, appellants v. Elias Freer, appellee

Gurdon S. Hubbard and Henry G. Hubbard, appellants v. Elias Freer, appellee.

Appeal from the Municipal Court of the City of Chicago.

In appeals from justices of the peace, where an appeal bond is decided to be insufficient, the statute is imperative that the Court shall permit “ a good and sufficient bond” to be filed.

Where the appeal bond was signed by one of the two appellants, as follows, “ Hubbard & Co. [Seal]:” Held, that the bond was amendable.

This cause was tried at the November term, 1837, of the Municipal Court of the City of Chicago, before the Hon. Thomas Ford.

James Grant and F. Peyton, for the appellants,

cited R. L. 395.(1)

*468Lockwood, Justice,

delivered the opinion'of the Court:

This action was commenced by Freer, against Gordon S. and Henry G. Hubbard, before a justice of the peace, and judgment rendered against the defendants. An appeal was taken to the Municipal Court of the City of Chicago; and the appeal bond was executed in the name of the firm, to wit, “Hubbard and Co.,” with only one seal. Freer made a motion to dismiss the appeal, on account of the defective execution of the bond, and the defendants made a cross motion, to permit them to amend the bond, or file a new one. The motion to dismiss was granted, and the cross motion overruled. This Court has frequently decided, that where an appeal bond is adjudged to be insufficient, the statute is imperative, that the Circuit Court shall permit a “ good and sufficient bond” to be filed. The refusal to grant this permission, Was therefore error.

The judgment of dismissal is reversed with costs, and the cause remanded, with directions to the Court below, to permit the defendants below to file a good and sufficient bond, and then proceed to try the cause on its merits.

Judgment reversed.

Note. See Dedman v. Barber, Ante 254; Swafford v. The People, Ante 289; Crain v. Bailey et al., Ante 321; Yunt v. Brown, Ante 264.