Daggitt v. Mensch
Daggitt v. Mensch
Opinion of the Court
delivered the opinion of the Court:
Whether an appeal “is prosecuted with effect” is not a question of fact, but a question of law, arising upon facts, and the familiar rule of pleading is, “facts only are to be stated in pleading, and not. arguments or inferences or matters of law.” 1 Chitty’s Pleading, (9th Am. ed;) 214; Kilgore v. Ferguson et al. 77 Ill. 213; People v. Crotty, 93 id. 180; Hatch v. Peet, 23 Barb. 583.
The averment that “on May 26, 1890, said suit was finally terminated by order of said circuit court then duly entered of record,” is manifestly insufficient to fix the liability of appellees, because the order so rendered may have been in favor of appellees; but by the terms of the bond they are liable only in the event that the “judgment from which the appeal was taken should be affirmed or the appeal dismissed.” The demurrer admits only those facts which are well pleaded. Gould's Pleading, chap. 9, part 1, sec. 5.
We concur in the ruling of the lower courts that the declaration was insufficient. The demurrer to it was properly sustained, and the judgment must therefore be affirmed.
Judgment affirmed.
Reference
- Full Case Name
- Joseph Daggitt v. Mary Mensch
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- 1. Pleading—facts, only, to be alleged. It is a familiar-rule of pleading that facts only are to be stated in pleading, and not arguments or inferences or matters of law. 2. Same—what demurrer admits. A demurrer to a pleading admits only such facts as are well pleaded. 3. Same—declaration on appeal bond. The condition of an appeal bond given on appeal from a judgment in an action of forcible entry and detainer was, that if the appellant should prosecute her suit with effect, and should pay the plaintiff all rent then due or that might become due, and all damages and loss, etc., with costs, in case the judgment appealed from should be affirmed or the appeal dismissed. The breach assigned in a declaration on the bond averred that the appellant did not prosecute her appeal with effect, and that on, etc., said suit was finally terminated by order of court then duly entered of record, and averring non-payment of rent: Meld, on demurrer, that the declaration failed to show facts to fix the liability of the obligors. 4. By the terms of the bond the obligors were liable only in the event that the judgment appealed from should be affirmed or the appeal dismissed, while the allegation that on, etc., said suit was finally terminated by order of the court then duly entered of record, fails to show any liability, as the order of the court may have been so rendered in favor of the party appealing. 5. Appeal bond—breach of condition-—whether a question of law or of fact. Whether an appeal “is prosecuted with effect” is not a question of fact, but a question of law, arising upon facts.