Wilson v. Moses, 55 Ill. App. 230 (1894)

Oct. 22, 1894 · Illinois Appellate Court

55 Ill. App. 230

Robert P. Wilson v. Adolph Moses and Max Pam.

1. Procedendo—On. Dismissal of Appeal.—When a case pending in the Circuit Court for trial on appeal from a justice court is called for trial and the appeal dismissed for want of prosecution, it is proper to award a procedendo to the justice, upon motion of the plaintiff’s attorney without proof.

Memorandum.—Appeal from Justice’s Court. Dismissed for want of prosecution, by the Circuit Court of Cook County; the Hon. Thomas B. Windes, Judge, presiding. Appeal by defendant. Heard in this court at the October term, 1894, and affirmed.

Opinion filed October 22, 1894.

John F. McGoobty, attorney for appellant.

Henby H. Kennedy and Joseph W. Moses, attorneys for appellees.

Mr. Justice Gary

delivered the opinion oe the Court.

This was an appeal by the appellant here, from the judgment of a justice, perfected by filing the bond with him on the 16th of February, 1892, and the bond and transcript were filed in the Circuit Court March 10, 1892.

Mo appearance was filed by the appellees there nor here, and nothing done in the case until March 12, 1894, when the record states that the cause was called for trial and the appeal dismissed with procedendo, for want of prosecution, on motion of the plaintiffs’ attorney. This was regular. Bessy v. Ruhland, 33 Ill. App. 73.

The statement in the abstract—contrary to the record— that the dismissal was upon a preliminary call, can not be regarded. The appellant urges that the plaintiffs should have been required to prove up their cause, and were not entitled to a procedendo. The decisions are the other way. Reed v. Driscoll, 84 Ill. 96; Lawler v. Gordon, 91 Ill. 602.

The judgment is affirmed.