Rogers v. Barth , 117 Ill. App. 323 ( 1904 )

Mr. Justice Freeman

delivered the opinion of the court.

The substance of the second additional plea, however in-artificially drawn, is first an argumentative denial that the Circuit Court ever had jurisdiction to dismiss the appeal taken from the judgment of the justice, and second, a specific denial under the absque hoe that it ever did so dismiss said appeal. To this plea appellees’ attorney filed a replication. The plea is what is known as a special traverse, wherein the inducement should be in substance a sufficient answer to the declaration, though not a direct denial nor yet confession and avoidance, and “ the traverse with which it concludes must go to a material point which will try the merits of the cause.” The State ex rel. v. Chrisman and others, 2nd Ind., 126-129. If the special traverse was good the only way of answering it was to join issue upon it. Idem, p. 130, citing Stephen on Pleading. See also Encycl. of Pl. & Pr., vol. 16, p. 547. The traverse with which the plea concludes under the absque hoe denies that the appeal from the justice to the Circuit Court ever was dismissed in that court, and if true would determine the case on the [merits. If the appeal had not been dismissed as averred in the declaration then the condition of the bond had not been broken in that respect, and no recovery could be had for a breach which had not occurred. In support of the declaration, appellees’ attorney offered in evidence the bond sued upon, together with a certified copy of an order of the Circuit Court entered April 21, 1902, dismissing the appeal taken to that court from the judgment of the justice, and proved the amount claimed to be due on the bond, including costs and interest on the judgment rendered by the justice. The defendant then endeavored to introduce evidence tending to show that the order of dismissal of April 21, 1902, was entered on a general call of all law cases pending in the Circuit Court under a general order of that court that cases so dismissed on such a call may, for good cause shown, be reinstated within ninety days from the date of such dismissal, and offered a certified copy of an order of the Circuit Court entered August 9, 1902, which was in the July term of that court, into which the ninety days allowed for reinstatement extended, showing that a motion was made in open court to set aside the dismissal of the appeal from the judgment of the justice; that the motion was continued, and that at a subsequent term the motion was granted, and the order of dismissal and judgment entered April 21, 1902, was vacated and the cause reinstated. This evidence was objected to and the objection “sustained under the pleadings.” To this ruling an exception was duly preserved. The state of the pleadings is such that it is not perhaps strange the trial court was misled, since so far as appears its attention was not called to the second additional plea to which a replication had been filed in an attempt to join issue upon it. Appellant’s attorneys sought leave to refile a plea of nul tiel record, which is not a proper plea to the action where suit is brought on the bond and not on the record. Mix v. The People, 86 Ill. 329-332; Herrick v. Swartwout, 72 Ill. 340-342; Kreuchi v. Dehler, 50 Ill. 176. We are of opinion, however, that the excluded evidence should have been admitted. It tended to sustain the special traverse, and to show that the appeal from the justice never was dismissed by any final order. It tended to show that the order of dismissal of April 21,1902, set up in the declaration had been set aside while the trial court still retained jurisdiction so to do, and the cause reinstated. It contradicted the averment of the declaration that the appeal stood dismissed, and tended to show that the condition of the bond was not broken as the plaintiffs contended. The exclusion of the evidence enabled appellees to recover judgnient for an alleged breach of the condition of the bond which apparently had not occurred, -since no such final order of dismissal and judgment as the bond contemplated had ever been entered, and the appeal was still pending and undetermined for which the bond sued upon was given. Surely no judgment can be sustained on an appeal bond conditioned that the principal in the bond shall prosecute his suit with effect, while the suit itself is undetermined.

Other points are presented in the briefs which, in view of the conclusion stated need not be discussed.

The judgment of the Circuit Court must be reversed and the cause remanded.

Reversed and remanded.

Mr. Presiding Justice Stein, dissenting.