Owens v. McKethe, 10 Ill. 79, 5 Gilm. 79 (1848)

Dec. 1848 · Illinois Supreme Court

10 Ill. 79, 5 Gilm. 79

Alexander K. Owens, appellant, v. Matthew McKethe, appellee.

Appeal from Grundy.

Where an appeal was prayed and the bond filed prior to April 1,1848, the day on which the new Constitution went into operation, the Court held that the case was not affected by the division of the State into judicial districts, but was pending in the Supreme Court existing at the time of perfecting the appeal.

All cases removed into the Supreme Court by appeal or writ of error since April 1, 1848, necessarily go to the Court held in the Division, in which the same were decided, unless the parties, by consent, send them to the Court in the adjoining Division.

Motion to extend the time for filing the record in the above entitled cause.

H. O. Merriman, counsel for the appellant,

stated to the Court that the appeal was prayed and perfected by the filing of the appeal bond before the first day of April, 1848, and submitted to the Court whether, in an appeal thus taken, the record should be filed in this Court or in the Supreme Court of the Third Grand Division.

The Constitution took effect April 1, 1848. See Schedule, § 18. The appeal being perfected before that date, it was pending in this Court from the time of being perfected, ib. § 20.

Upon the foregoing statements and references, he moved that the time for filing the record be extended, not having received the same in consequence of the unavoidable delay of the mail.

The Opinion of the Court was delivered by

Treat, C. J.

The question is made whether this appeal is pending in this Court. The case originated in the Third Grand Division, but the appeal was prayed and the bond filed prior to the first of April, 1848, the day on which the new Constitution went into operation. The appeal was perfected by the filing of the bond, and the case was from that time pending in the Supreme Court. The division of the State into judicial districts does not affect cases pending in the Supreme Court when the Constitution took effect. Such cases are still pending in this Court, and must here be disposed of. The Schedule to the Constitution provides, that all suits and proceedings pending in the Supreme Court on the first Monday in December, 1848, “shall be finally adjudicated where the same may be pending.” All cases removed to the Supreme Court by appeal or writ of error since the first of April, 1848, necessarily go to to the Court held in the Division in which the same were decided, unless the parties, by consent, send them to the Court in the adjoining Division.

Motion alloioed.