Aurand v. Aurand , 87 Ill. App. 29 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

The only question presented for our determination is as to whether the statement of counsel for appellant at the opening of the trial below disclosed sách a state of facts as precluded a right-of recovery. The payment of a part of the amount due upon the second bond was not sufficient to preclude a right of action for whatever remained unpaid. It was, therefore, solely upon the effect of the giving of the second appeal bond that the action of the trial court must have been based. But the giving of the second appeal bond did not operate to supersede and discharge the obligation, created by the first bond. The seeúrities thereby created were cumulative. Notwithstanding the giving of the new bond upon the second appeal, the obligation of the bond sued upon, given upon the first appeal, could be enforced. There had been no enforcement of the obligation of the second bond, so far as is disclosed, but merely a payment on account of such obligation, and in part only. Therefore neither the first nor the second of the appeal bonds was wholly discharged, and each remained to that extent enforceable against defendants in error.

It is quite well settled that the securities thus given by the two successive bonds are cumulative in effect and that the giving of the second does not discharge the former. Becker v. The People, 164 Ill. 267.

It was, therefore, error to exclude evidence and to instruct the jury peremptorily to return a verdict for the defendants.

It is impossible to determine from the abstract of the record whether the cross-errors argued are of importance. There appears nothing by which to determine the relative dates of the orders for cost bond, and dismissing and reinstating the suit. If the record itself be searched the defendants in error gain nothing, for it is disclosed that although cross-errors are argued, none are assigned upon the record.

The motion of defendants in error to dismiss the writ of error is denied.

The judgment is reversed and the cause is remanded.