Adams v. Miller, 14 Ill. 71 (1852)

Nov. 1852 · Illinois Supreme Court

14 Ill. 71

Richard S. Adams, Plaintiff in Error, v. Frederick Miller, Defendant in Error.

ERROR TO JOHNSON.

If a party brings a penal action without filing a bond for costs, it may be dismissed at the instance of the defendant, but he must raise the objection at the earliest opportunity, or he waives his right to insist upon it.

This was an action commenced before a justice of the peace, for the recovery of a penalty; the justice rendered a judgment for the plaintiff; the defendant then took the case to the circuit court by appeal. At the May term, 1849, of the Johnson Circuit Court, Denning, Judge, presiding, the suit was dismissed on the application of the defendant, because the plaintiff had omitted to give security for costs before commencing the action. Adams brought the suit to this court by writ of error.

J. Jack, for plaintiff in error.

J. Dougherty, for defendant in error.

Treat, C. J.

This was a penal action commenced before a justice of the peace, and removed by appeal into the circuit court. It was dismissed by the latter court, because security for costs had not been given. The decision was clearly erroneous. The objection carne too late. It was of a dilatory character, and should have been interposed before the justice. If a party brings a penal action without filing a bond for costs, it maybe dismissed at the instance of the defendant; but he must raise the objection at the earliest opportunity, or he waives his right to insist upon it. The case of Adams v. Miller, 12 Illinois, 27, is directly in point.

The judgment is reversed, and the cause remanded.

Judgment reversed.