Opinion
Opinion filed June 11, 1931.
1. APPEAL AND ERROR — when one not a party to suit may resist dismissal of writ of error for prejudice. Where an insurance company insures one against liability for damages caused by the use of an automobile and the insured agrees not to interfere in the defense by the insurer of any legal proceeding brought against the insured, and thereafter the insurer does defend a suit against insured and sues out a writ of error, the insurer may resist the dismissal of a writ of error by the insured if the above facts appear of record, but not if they appear only in an affidavit.
2. APPEAL AND ERROR — restriction to record in determination of prejudice to another by dismissal of writ of error. Whether a person not a party to a suit is so prejudiced by a judgment as to entitle him to resist the dismissal of a writ of error must be determined from the record, and not from affidavits or other extrinsic evidence.
Error by defendant to the Circuit Court of Madison county; the Hon. JESSE R. BROWN, Judge, presiding. Heard in this court at the February term, 1931. Writ dismissed. Opinion filed June 11, 1931.
KRAMER, KRAMER CAMPBELL, HAROLD J. BANDY and R.E. COSTELLO, for plaintiff in error; J.J. SEELEY, of counsel.
No appearance for defendant in error.
Plaintiff in error entered a motion for the dismissal of the writ of error. The Massachusetts Bonding Insurance Company filed verified objections setting up that it had insured plaintiff in error against damages caused by the use of his automobile; that it had agreed to defend, in his name, any suit brought against him to recover such damages; that he agreed to not interfere in any legal proceeding but at all times would render all co-operation and assistance in his power in prosecuting appeals, etc.; that Joseph Bachman sued to recover for personal injuries alleged to have been caused by the negligence of plaintiff in error in the operation of said automobile; that objector defended the suit and the plaintiff therein recovered a verdict and judgment against plaintiff in error for $5,000; that objector sued out this writ of error in the name of plaintiff in error, as it had the right to do, and that a dismissal of the writ will prejudice its rights. If those facts appeared upon the record the objector would be entitled to resist the dismissal of the writ. Hanchett v. Ives, 133 Ill. 332; Anderson v. Steger, 173 Ill. 112. Objector's relation to the suit does not appear from the record but only from the affidavit filed in support of the objections. The question as to whether objector is so prejudiced by the judgment as to entitle it to resist the dismissal of the writ must be determined from the record, and not from affidavits or other extrinsic evidence. As the record discloses no such prejudice plaintiff in error has the right to dismiss the writ. Granat v. Kruse, 213 Ill. 328. The motion is allowed and the writ of error is dismissed.
Writ dismissed.