Malzahn v. Gronwald, 240 Ill. App. 349 (1926)

April 27, 1926 · Illinois Appellate Court

240 Ill. App. 349

Fred Malzahn and Augusta Malzahn, Appellees, v. Frederick Gronwald and Marie Gronwald, Appellants.

1. Justices of the peace — sufficiency of evidence to support finding of failure to pay fee for filing appeal within statutory period. Evidence held not to show error in finding oí city court that appellants from judgment of justice court had failed to pay to the justice his fee for filing the appeal within the twenty-day period fixed by the statute.

2. Justices of the peace — dismissal of appeal to city court for failure to pay fee of justice for filing appeal. An appeal from a judgment in justice court is properly dismissed where the city court finds that appellant failed to pay the fee of the justice for filing the appeal within the period fixed by statute.

Appeal by defendants from the City Court of DuQuoin; the Hon. L. P. Habriss, Judge, presiding. Heard in this court at the March term, 1926.

Affirmed.

Opinion filed April 27, 1926.

L. A. Cranston, for appellants.

M. C. Cook, for appellees.

Mr. Justice Barry

delivered the opinion of the court.

Appellees recovered a judgment against appellants on April 22,1925, before a justice of the peace. Appellants filed an appeal bond and the same was approved by the justice on May 12, 1925. The justice testified positively that the fee provided by law for the filing of the appeal was not paid to him within 20 days from the rendition of the judgment and that as soon as he received the fee he paid the same to the clerk of the city court. The fee was received by the city clerk on June 1, 1925. Counsel for appellants testified that from certain entries made by him on his cash book he can say positively that the fee was paid to the justice on May 6, 1925, because he does not put expenditures on his book that are not made. The justice further testified that there was delay in approving the bond, which was occasioned by the attorney telling him that he was going to Chicago and would pay the fee when he returned, and that he would say the conversation occurred on May 11. This was not denied by the attorney for appellants. If that testimony is true it is quite evident that the fee had not been paid on May 6. In the state of the record we would not be warranted in holding that the court erred in finding that the fee provided by law for the filing of the appeal was not paid within 20 days from the rendition of the' judgment.

The statute expressly provides that the party praying for an appeal shall within 20 days from the rendition of the judgment pay the fee provided by law for the filing of such appeal and enter into bond, etc. Cahill’s Ill. St. ch. 79, ¶ 116. The fact that the fee was paid to the clerk of the city court within 20 days after the approval of the appeal bond did not meet the requirements of the statute. Appellants having failed to comply with the statute the court did not err in dismissing the appeal. Conklin v. Tobey, 224 Ill. App. 142. The judgment is affirmed.

Affirmed.