Reid v. Cisler, 35 Ill. App. 572 (1890)

April 21, 1890 · Illinois Appellate Court

35 Ill. App. 572

Hannah M. Reid v. James Cisler and Joseph Serson.

Appeals—Affidavit of Merits—Filing of.

1. On appeal from the judgment of a justice, the defendant is not required to file an affidavit of merits in the higher court until the cause is reached for trial.

2. The statute makes no distinction in this respect between an appeal perfected by entering into bond before the clerk of the Circuit or Superior Court, and one where the bond is approved by the justice.

[Opinion filed April 21, 1890.]

In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.

Messrs. Doolittle, McKey & Tolman, for plaintiff in error.

Messrs. Kraet, Cross & Collins, for defendants in error.

Garnett, J.

Martin v. Hochstadter, 27 Ill. App. 166, decides that on appeal from a judgment of a justice of the peace to the Circuit Court, the defendant is not required to tile an affidavit of merits until the cause is reached for trial. The ruling was affirmed in World’s Soap Mfg. Co. v. Woltz, 27 Ill. App. 202, and again in Jensen v. Fricke, 35 Ill. App. 23.

Ho reason is perceived for withdrawing what has been heretofore said on the point. The statute makes no distinction, in this respect, between an appeal perfected by entering into bond before the clerk of the Circuit or Superior Court and one where the bond is approved by a justice. The judgment in this case, and the order denying the motion to set it aside, conflict with Martin v. Hochstadter, and are therefore reversed and the cause remanded.

Reversed and remanded.