McAllister v. Clark

Citations

• 86 Ill. 236

Syllabus

<p>1. Variance—as to obligors in bond. Where a declaration on an injunction bond showed that the bond was executed by the defendants by the names and style of A. B. and 0. D., and the bond produced in evidence did not have the word “ and ” between the defendants’ names, it was held, the variance was too trivial and technical to bear discussion.</p> <p>2. Same—as to names of parties in a collateral proceeding. In a suit upon an injunction bond the declaration alleged that damages were assessed on the dissolution of an injunction in a suit wherein A. B. was complainant, and William 0. Clark, trustee, and Polly H. Clark, his wife, were defendants, while the record offered showed a suit wherein A. B. was complainant, and William O. Clark, trustee, and Poll H. Clark, his wife, were defendants. It was held, that as the decree was not the foundation of the suit the variance was immaterial, the word “ Poll ” being a mere clerical error for “ Polly.”</p> <p>3. Practice in supreme court — error does not always reverse. Although it may be error for the court, after issue joined upon pleas and the trial has commenced, to. allow the plaintiff to demur to a plea, and to sustain the demurrer, yet when the record fails to show that the defendant was deprived of any evidence admissible under such plea, the error, if any, affords no ground of reversal.</p> <p>4. Injunction bond—surety bound by damages assessed. A surety in an injunction bond is concluded by the decree assessing damages on dissolution of the injunction, though not a party to such suit, and he can not go behind the same and show payments made prior to such assessment.</p> <p>5. Same—measure of damages. In a suit upon an injunction bond the assessment of damages by the court on the dissolution of the injunction, and accruing interest thereon, are the proper subjects of recovery.</p>