George v. Bischoff

Citations

• 68 Ill. 236

Syllabus

<p>1. Pleading and pbactice—carrying demurrer back. Where a defendant withdraws pleas to which a demurrer has been sustained, this necessarily withdraws the demurrer, and it can not be assigned for error that the demurrer was not carried back to the declaration.</p> <p>2. Pleading—plea must answer all it professes. Where the breaches assigned upon an appeal bond were, the failure to prosecute the appeal with effect, the non-payment of the costs in the appellate court and in the circuit court, and the damages awarded on dismissal of the appeal, a plea to the whole cause of action, which fails' to answer the breach in not prosecuting the appeal with effect, is bad.</p> <p>8. Appeal bond—measure of damages. Although the appellant may-have paid the judgment or decree appealed from, and all the damages and costs in both courts, according to his bond, yet, if he has failed to prosecute the appeal with effect he will be liable upon the appeal bond for nominal damages.</p> <p>4. Same—estoppel by recitals in. Where a decree was appealed from by one of the several defendants, and the appeal bond recited that the decree was rendered against the appellant, and was conditioned that he would pay such decree if affirmed: Held, that the obligors in the appeal bond were estopped from denying the recitals in the same, or showing that the decree was in rem, and that in case of an affirmance the obligors were bound to pay the decree or be liable to the penalty of the bond.</p> <p>5. Same—good, if not in statutory form. Where an appeal bond is not in the exact form prescribed by statute, it will nevertheless be obligatory on those executing it, as a voluntary bond. In such a case the delay of the proceedings, and having the same reviewed, will furnish a sufficient consideration for the undertaking.</p> <p>6. Payment—of costs—whether giving note for, is. A party who was bound by his appeal bond to pay the costs of the cause in the circuit court, gave his promissory note to the circuit cl