Brooks v. President of Jacksonville, 2 Ill. 568, 1 Scam. 568 (1839)

July 1839 · Illinois Supreme Court

2 Ill. 568, 1 Scam. 568

Samuel S. Brooks and Murray McConnell, appellants v. The President and Trustees of the Town of Jacksonville, appellees.

Appeal from Morgan.

On appeal from the Circuit to the Supreme Court, a variance between the amount of the judgment appealed from, and the amount recited in the bond, is fatal, though the variance occurred through the mistake or inadvertence of the clerk of the Circuit Court.

Where an appeal is dismissed, the Court will not permit the transcript of the record to be withdrawn for the purpose of bringing a writ of error.

In this case judgment was rendered in the Morgan Circuit Court for $50 debt and $11,55 damages. In,the condition of the bond, the judgment was recited as for $61 and $50. The deputy-clerk who transcribed the record, made affidavit that he filled up the bond, and that the variance happened through his mistake and inadvertence.

The appellees moved to dismiss the appeal on account of the variance.

Wm. Brown, for the appellees.

M. McConnell, for the appellant.

Per Smith, Justice:

This cause must be decided upon first principles. If suit should be brought on this bond, the allegations could not be supported by proof.

This is not like the case of a variance between a judgment and an execution.

The appeal must be dismissed.

Appeal dismissed.

McConnell thereupon moved the Court for leave to withdraw the transcript of the record, for the purpose of bringing a writ of error.

Per Smith, Justice:

This motion must be denied. The transcript has become a part of the records of this Court, and cannot be withdrawn.

Motion denied.

Variances: Pearsons v. Lee, Ante 193; Felt v. Williams, Ante 206; Leidig v. Rawson, Ante 272; Hull v. Blaisdell et al., Ante 332; Peyton et al. v. Tappan, Ante 388; Linn v. Buckingham, Ante 451.