Peadro v. People, 57 Ill. App. 45 (1895)

Feb. 11, 1895 · Illinois Appellate Court

57 Ill. App. 45

R. M. Peadro et al. v. People, etc., for the use of Fuller & Fuller.

1. Appeals—Costs on Dismissal—Non-appealing Defendants.—> Where one of several defendants in a justice’s court takes an appeal to the County Court, and the clerk of that court issues a summons for the non-appealing defendants, returnable to the next term, which is not served upon all of said defendants, they not having entered their appearance, it is error to dismiss the appeal at the return term for want of prosecution and render judgment against all the defendants for costs.

3. Same—Part of Defendants Not Appealing—Summons—Continuance.—Under Sec. 70, Ch. 79, R. S., entitled, “ Justices and Constables,” when the summons is not served upon all the parties to the judgment from which the appeal is taken the cause is not in a condition to be tried, and must be continued.

3. Practice—Motions and Cross-Motions.—Where a motion is made to dismiss for want of proper parties, and a cross-motion is made and allowed for leave to amend by joining such parties, it is not error to deny the motion to dismiss.

Memorandum.—Error to the County Court of Moultrie County; the Hon. John D. Pervis, Judge, presiding. Heard in that court on appeal from a justice of the peace. Heard in this court at the November term, 1894.

Reversed and remanded.

Opinion filed February 11, 1895.

E. M. Peadro, attorney for plaintiffs in error.

Harbaugh & Whitaker, attorneys for defendants in error.

Mr. Presiding Justice Wall

delivered the opinion of the Court.

A judgment was rendered by a justice of the peace against the plaintiff in error, Peadro, and four other parties, from which judgment said plaintiff in error took an appeal to the County Court, by filing his bond with the justice, whereupon the justice filed the- papers in the cause with a transcript of the proceedings, in the office of the clerk of the County Court.

The clerk issued a summons for the non-appealing defendants, returnable to the next term of the County Court, which was served upon all of said parties except one, as to whom there was a return of not found. He did not enter his appearance. At the return term, on motion of the plaintiffs, the defendants not appearing, or any one for them, the appeal ivas dismissed for want of prosecution, and judgment was rendered against all the defendants for costs.

This was error. The summons not having been served on all the parties, the cause was not in a condition to be tried. Neither the plaintiff in error, nor his co-defendants, were bound to take any steps at that term, and the cause should have been continued. R. S., Ch. 79, Sec. 70; Stewart v. Peters, 33 Ill. 384; Walter v. Burman, 59 Ill. 186; Steinborn v. Thomas, 8 Brad. 515; Humphreys v. Rodgers, 9 Ib. 281.

The defendants in error do not combat this objection, but have urged merely that plaintiff in error, Peadro, could not properly prosecute the writ of error in his own name alone, and they moved to dismiss on that' ground. A cross-motion for leave to amend, by joining the other parties as plaintiffs in error, was interposed, which was allowed, and the motion to dismiss was then denied. The point thus made by defendants in error having been obviated by amendment of the writ of error, nothing remains to be done but to reverse the judgment for the error in dismissing the appeal, and to remand the cause for further proceedings.