Morgan County IL Archives Court.....Boorman, V Freeman 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:08 pm

Source: Records Of Cases Illinois
Written: 1850

James Boorman, plaintiff in error, v. William D. Freeman et al., defendants in 
error.

Error to Morgan.

If a defective appeal bond is filed in the Circuit Court, and the party 
applies for leave to file a new bond, he should be permitted to do so, within 
a reasonable time, to be named in the order granting leave. (a)

Boorman sued Freeman & Co. before a justice of the peace, upon an account. 
Freeman & Co. filed an account in set-off, and recovered a judgment against 
Boorman for $24.38. From this judgment Boorman appealed to the Morgan Circuit 
Court; the appeal bond was signed by an unauthorized agent in the name of 
Boorman. In the Circuit Court, Freeman & Co. moved to dismiss the appeal, 
because of the insufficiency of the bond; Boorman then filed a cross motion 
for leave to file an amended bond, and that the cause be continued. Whereupon, 
the Circuit Court, Woodson, Judge, presiding, at November term, 1849, 
sustained the motion to dismiss, and overruled the motion to amend and 
continue, and dismissed the appeal.

Boorman sued out a writ of error, and brings the cause to this court; and 
assigns for error, the refusing the motion to continue the cause, and for 
leave to amend the appeal bond.

D. A. Smith, for plaintiff in error.

M. McConnel, for defendant in error.

Treat, C. J. This case does not differ in principle from that of Bragg v. 
Fessenden, 11 Ill., 544. There, an agent executed the appeal bond in the name 
of the appellant, without authority under seal for that purpose. Subsequently 
and after the expiration of the time allowed by law for taking the appeal, the 
appellant executed a power of attorney confirming the act of the agent. This 
court held that the bond was sufficient, and reversed the judgment of the 
Circuit Court dismissing the appeal. Here, the agent had no authority under 
seal to execute the appeal bond, on behalf of the appellant. But when the 
appellee moved to dismiss the appeal, because of the defective execution of 
the bond, the appellant entered a cross motion for leave to file a new bond, 
which the court refused. The two cases are identical in principle. In both, 
the agents had no competent authority to bind their principals. In one, the 
appellant was permitted to perfect his appeal, by the ratification of the 
defective bond; in the other, he offered to perfect his appeal, by the filing 
of a sufficient bond in place of the defective one. If a party can prevent the 
dismissal of an appeal, by confirming a bond executed without authority, he 
certainly should be allowed to accomplish the same result, by giving a new and 
valid bond. The statute provides: "If, upon the trial of any appeal, the bond 
required to be given shall be adjudged informal or otherwise insufficient, the 
party who shall have executed such bond, shall in no wise be prejudiced by 
reason of such informality or insufficiency; provided, he will, in a 
reasonable time, to be fixed by the court, execute and file a good and 
sufficient bond:" R. S., ch. 59, sec. 65. According to the construction put 
upon this statute, in Bragg v. Fessenden, and the cases there cited, this case 
is clearly within its provisions; and the Circuit Court erred in not giving 
the appellant leave to file a new bond. The proper order would have been, that 
he should file the bond within a reasonable time—the day to be named in the 
order—and in default, thereof, that the appeal should be dismissed.

The judgment of the Circuit Court will be reversed, with costs, and the cause 
remanded for further proceedings.

Judgment reversed.

--------------------
(a) As to the right of the appellant to amend his appeal bond in case of 
appeals from justices of the peace, see Weist v. The People, 39 Ill., 507 
(annotated edition), and note.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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