Rosenthal v. Craig, 66 Ill. App. 541 (1896)

Nov. 5, 1896 · Illinois Appellate Court

66 Ill. App. 541

B. Rosenthal and Mrs. B. Rosenthal v. J. G. Craig.

1. Practice—Appeals from Justices.—Where an appeal from, a justice of the peace is taken by filing a bond in the Circuit Court, and summons to the appellee is issued and served upon him, or two nihils returned, or the appearance of the appellee entered, and such service, returns or appearance has been ten days before the term of court at which such proceedings are taken, the appeal may be dismissed, but not otherwise without the consent of the appellee.

Appeal, from a justice of the peace. Error to the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1896.

Reversed and remanded.

Opinion filed November 5, 1896.

In this case an appeal was taken by B. Rosenthal, and Mrs. B. Rosenthal, from a judgment rendered against them by a justice of the peace, by filing a bond with the clerk of the Superior Court, on the 20th day of March, 1894.

Mo summons was issued to the plaintiff in said cause, and no entry of appearance made for him, or in his behalf, until the 20th day of March, 1896, and no proceedings of any kind whatever were ever taken in said cause from the 20th day of March, 1894, until the 20th day of March, 1896, when the defendant in error entered his appearance, and on the same day moved to dismiss said appeal for want of prosecution, which was done by the court.

Johnson & McDannold, attorneys for plaintiffs in error.

Mo appearance for defendant in error.

Mr. Justice Waterman

delivered the opinion of the Court.

It has been settled by repeated adjudication that where an appeal from a judgment of a justice of the peace is taken by filing bond in the Circuit Court, and summons to the appellee is issued and served upon him, or two nihils have been returned, or the appearance of the appellee has been entered. which service, returns or appearance has been ten days before the term of court at which proceedings are taken, the appeal may be dismissed, and not otherwise without the consent of the appellant. Chicago Dredging and Dock Co. v. McCarthy, 11 Ill. App. 552; Camp v. Hogan, 73 Ill. 228; Sheridan v. Beardsley, 89 Ill. 477; Schmidt v. Skelly, 10 Ill. App. 564; Wollman v. Crisetti, 37 Ill. App. 366; Sutherland v. Lawrence, 60 Ill. App. 331.

The judgment of the Superior Court is reversed and the cause remanded.