Carlson v. Gilbert

Decided January 21, 1902

Appellate Court of Illinois · decided 1902-01-21

<p>1. Appeals — Do Not Lie by Persons Not Parties to the Judgment Appealed From, — An appeal by a person not a party to the judgment appealed from is properly dismissed. 1</p> <p>2. Practice— What is Not a Waiver of Proof of the Execution of a Bond Under a Plea of Non Est Factum. — In an action of debt upon a replevin bond, the introduction of the bond without objection, under a verified plea of non est factum, is not a waiver of proof of the execution of such bond.</p>

Judgment reversed and cause remanded · Decided 1902-01-21

Mr. Justice Waterman

¶1delivered the opinion of the court.

¶2The motion to dismiss the appeal of George A. Hadley must be sustained. He is not a party to the judgment, nor, since the dismissal as to him, to the suit.

¶3Plaintiff below made no proof of the execution of the bond; this, under the verified plea of non est factum, he was required to do.

¶4The introduction of the bond without objection thereto was not a waiver of proof of execution thereof.

¶5It was so far, merely a written document, to which was appended the name of Carlson. Proof that his signature was annexed thereto or that it was his deed was lacking".

¶6Appellee did not move to strike the plea from the files, nor demur to it; nor object that it was verified before an attorney in the cause.

¶7The plea may contain a trifling informality, but is substantially good and was sufficiently verified.

¶8The appeal of George A. Hadley is dismissed; the judg. ment reversed and the cause remanded.