Conard v. Ehrman , 61 Ill. App. 128 ( 1895 )

Mr. Justice Wall

delivered the opinion of the Court.

It is argued by defendant in error that by the condition of the bond the obligors were bound to produce the goods in the event only that said suits should be decided in favor of the plaintiffs by the justice of the peace, and such judgments not appealed from by the obligors, and therefore, as the suits were decided by the justice against the plaintiffs, their appeal to the Circuit Court and the judgment of that court in their favor, from which no further appeal was prosecuted by either party, imposed no liability for not producing the goods to answer the special executions.

We can not accept this view. The express object of giving the bond was to enable Ast & Koren “ to retain possession of said goods during the pendency of said attachment suits and until the same are finally decided, determined and disposed of,” and then it was provided that if said suits, or either of them, should be decided in favor of the plaintiffs therein on the question of the title, ownership or right to possession of said goods, and such decision or decisions should not be appealed from, then the goods should be forthcoming to answer the judgment of the court in such suit or suits.

The construction contended for, limits the parties to the judgment of the justice of the peace, and not only so, but to a judgment in favor of the plaintiffs not appealed from.

Manifestly the parties contemplated a final decision, determination and disposition of the controversy, and when such final adjudication was obtained in favor of plaintiffs the goods were to be forthcoming to answer the judgment of the court, and this is the only fair construction to be placed upon the condition when the whole is considered.

It is further argued that the declaration does not aver that Ast & Keren did retain possession of the goods pending the suit. The bond recited that the goods were in their possession and that they desired to retain the same until, etc., when they would produce them to answer the judgment. The declaration followed these recitals and averred that the goods were not forthcoming when required. Thus it is shown, with sufficient clearness, that the parties who were in possession of the goods, and who wished to retain them, and who undertook to produce them in the event named, failed to keep their obligation.

¡Nothing further is necessary.

We are of opinion the declaration disclosed a cause of action and that it was error to sustain the demurrer.

The judgment will be reversed and the cause remanded.