City of East St. Louis ex rel. Dowd v. Renshaw

Mr. Justice Magruder

delivered the opinion of the court:

The question in the case is the sufficiency of the amended pleas. We cannot see why the first amended plea, considered by itself, does not present a good defense. Benshaw bound himself by his bond to promptly turn over to his successor all monies coming into his hands as city treasurer, “as directed by the city council.” The plea avers, that his successor was appointed and qualified and had demanded the money, and the city council had directed him to pay it over to such successor, and he had done so. The averment is, that he did just what his bond required him to do.

It is claimed, however, that the plea, being a plea puis darrein continuance, waives all previous pleas, and confesses the matter in dispute between the parties. The general rule is, that a plea puis darrein continuance supersedes all other pleas and defenses in the cause ; and, by operation of law, the previous pleas are stricken from the record, and the cause of action is admitted to the same extent as if no other defense had been urged than that contained in this plea. (Mount v. Scholes, 120 Ill. 394; Waterbury v. McMillan, 46 Miss. 635; Dinet v. Pfirshing, 86 Ill. 83; 1 Chitty on Plead. 690; Simonton v. Tounge, 1 Strobh. 17). “Everything is confessed except the matter contested by the plea puis.” (Kimball v. Huntington, 10 Wend. 677).

What then are the allegations of the declaration which are confessed under the rule stated? The declaration alleges, that the Circuit Court, in a chancery cause therein pending between John Dowd complainant, and the City of East St. Louis and Renshaw, defendants, made an order directing Renshaw to hold the sum of §2000.00, which he had in his hands as city treasurer. It is at the same time alleged, that the said city, by its city council, directed Renshaw, as treasurer, to pay over said sum “to the parties entitled thereto, as shown by the said bill.” The alleged orders appear to be inconsistent with each other. The meaning would seem to be, that the Circuit Court ordered the treasurer to hold the fund, and the city council ordered him to pay it to the complainant in the bill.

But the direction of the city council to pay to John Dowd, and not the direction of the Court to hold the fund, is the direction which is alleged to have been disobeyed. The breach assigned is, not that Renshaw did not hold the fund as directed by the court, but that he did not pay it to John Dowd as directed by the city council. There is no allegation, that he was directed to pay the money to Dowd within any specified time. It may be, that the city auditor was required to audit the claim before the treasurer was bound to pay it, and that it had not been so audited. It may be, that the mayor and city clerk were required to draw and sign a warrant on the city treasurer before the claim could be paid, and that such warrant had not been drawn and signed. If any such preliminary precautions were required by the law or ordinances, and had not been complied with, the treasurer was not at fault if he waited for a compliance with them, before obeying the order of the city council to pay the money to Dowd. At any rate, it does not appear, nor is it alleged, that he was guilty of any unreasonable delay in not paying over the fund after the first order of the council was made.

The filing of the plea of puis darrein continuance may be regarded as confessing that Renshaw was ordered by the city council to pay the money to Dowd, and that he did not do so. Yet it does not confess that there was no good cause for waiting a reasonable time before carrying the order into effect. While thus holding the fund, his term expired, his successor was appointed and entered upon the duties of the office, and, after the last continuance, as the first amended plea avers, such successor made demand for the money, and the city council made a second order directing Renshaw to pay the money to such successor, which order he obeyed. Notwithstanding the admission that the council ordered the payment to Dowd, yet, in the absence of any allegation, that there was any unreasonable delay in obeying that order, the making of a second order by the council to pay the money to the new treasurer before the first order was carred into effect, and the payment of the money to the successor in obedience to the second order, constituted a good defense.

The obligee in the bond is the city of East St. Louis. If it be admitted that the city may bring suit on the bond for the use of another, yet the city is regarded as the real plaintiff, whether the suit is brought for its own use or for the use of others. (Washington v. Young, 10 Wheat. 404). The City of East St. Louis, being the obligee in the bond and the plaintiff in this suit, is estopped from complaining that the obligor obeyed its own order to pay the money to his successor. If it made two contradictory orders, the last will be regarded as overruling or setting aside the first. Otherwise, the existence of contradictory orders might mislead the treasurer. The general rule is well settled, that the penalty of an official bond cannot be invoked where the plaintiff has done anything directly or indirectly to mislead the officer. (Murfree on Official Bonds, secs. 467, 468).

It is said that there can be but one plea puis darrein continuance in the same cause. Such seems to be the rule in regard to such pleas. (1 Chitty on Plead. 692; Could on Plead. 347). In the case at bar, however, the court granted leave to file amended pleas, and, when the two amended pleas were filed, plaintiff demurred to both of them. If the filing of the two amended pleas violated the rule stated, the plaintiff should have made a.motion to strike one of them from the files. (Millikin v. Jones, 77 Ill. 372). Under the circumstances, the first plea will be regarded as properly filed, and the second as stricken from the files.

As to the time of filing the plea, the rule in this State is that a plea puis darrein continuance may be filed at any time before trial. (Robinson v. Burkell, 2 Scam. 278).

We think that the first amended plea set up a good defense to the action, and that the demurrer to it was properly overruled.

The judgments of the Appellate and Circuit Courts are affirmed.

Judgment affirmed.