Yunt v. Brown, 2 Ill. 264, 1 Scam. 264 (1836)

Dec. 1836 · Illinois Supreme Court
2 Ill. 264, 1 Scam. 264
Jacob Yunt plaintiff in error, v. Ephraim Brown, defendant in error

Jacob Yunt plaintiff in error, v. Ephraim Brown, defendant in error.

Error to Fulton.

A writ of certiorari to remove a cause from a justice of the peace to the Circuit Court, is given by statute in such cases only as appeals are given.

No appeal or writ of certiorari can be taken from the judgment of a justice of the peace, in a suit brought to recover an assessment upon a member of a class, made under § 45 of the Militia Law.

Judgment was rendered in this case by a justice of the peace of Fulton county, before whom the suit was originally instituted, in favor of the plaintiff in error, for $8,33|- and costs, from which Brown obtained a writ of certiorari to the Circuit Court.

In the Circuit Court, at the May term, 1833, the Hon. Richard M. Young presiding, a motion was made to quash the writ of certiorari, which was overruled by the Court. At the June term, 1834, the judgment of the justice of the peace was reversed, and a judgment for costs rendered in favor of Brown.

T. Ford and A. W. Cavarly, for the plaintiff in error.

A. Williams, for the defendant in error.

Smith, Justice,

delivered the opinion of the Court:

This was an action brought under the provisions of the 45th section of the “ diet for the Organization and Government of the Militia of this Stale,” (1) in force 2d July, 1833, to recover the amount of the assessment made on the defendant in error, as a member of the class to which he belonged, for the services of the persons furnished by the class under a draft, in pursuance of orders from the commander in chief, while in actual service. This section provides for the institution of a suit, to recover from each member of the class his respective proportion of the compensation due to the substitute, before a justice of the peace; and declares there shall be no appeal from the decision of the justice.

The defendant Brown sued out a writ of certiorari to the Circuit Court, and the plaintiff, on its return, moved to quash the same for having been improvidently issued.

The Circuit Court refused to quash the writ; and this is now assigned for error in this Court.

The point made admits of no doubt that the Circuit Court decided erroneously in refusing to quash the certiorari. A writ of certiorari to remove a cause from a justice to the Circuit Court, is given by statute in such cases only as appeals are given, and then in such cases as the party shall account for his omission or inability to take the appeal within the time prescribed by *265statute, and on showing that injustice has been done, and in what the injustice consists.

But here the remedy of appeal is expressly prohibited, and consequently no writ of certiorari could lie. The policy of the prohibition it is not for the Court to enquire into. The law is to be administered as it is found, and not as it might be supposed it ought to be.

The judgment of the Circuit Court is reversed, and judgment is rendered in this Court for the amount of the judgment rendered before the justice, with costs of suit before the justice, and in the Circuit Court, and this Court, for the plaintiff in error.

Judgment reversed.