Wollman v. Greshetti, 37 Ill. App. 366 (1890)

Nov. 11, 1890 · Illinois Appellate Court

37 Ill. App. 366

Joseph Wollman v. Paul Greshetti.

Appeal—Practice.

This court holds as erroneous the dismissal, for want of prosecution, of an appeal taken by filing the bond with the clerk of court, appearance of defendant in error as an alternative for service of summons, or two nihils, having been entered less than ten days before the first day of the term during which said dismissal occurred.

[Opinion filed November 11, 1890.]

In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

Messrs. C. E. Cruikshank and F. H. Atwood, for plaintiff in error.

No appearance for defendant in error.

Gary, J.

This was an appeal by the plaintiff in error from the judgment of a justice in favor of the defendant in error, which appeal was taken by filing the bond with the clerk of the Superior Court.

The record does not show that any process against Greslietti ever issued out of the Superior Court, and his appearance in the case in the Superior Court was entered but two days before the May term thereof, 1890. On the fifth day of the term the cause was called for trial, and the appeal dismissed for want of prosecution, the then appellant and now plaintiff in error, not appearing. This action of the court was premature. The appearance, as an alternative for service of a summons, or two nihils, should have been entered not less than ten days before the first day of the term to enable the appellee there to proceed ex parte. Camp v. Hogan, 78 Ill. 228.

The judgment is reversed and the cause remanded.

Reversed a/nd remanded.