Williams v. Rutter, 40 Ill. 40 (1864)

April 1864 · Illinois Supreme Court

40 Ill. 40

Williams et al. v. Rutter et al.

(April Term, 1864.)

Continuance—;filing record sooner than the law requires. If the appellant voluntarily files his record in this court sooner than required by law, and the appellee appears and joins in error, the case will stand for hearing at the term, the same as if the record had been filed under the requirements of law; and in such case the appellant cannot have a continuance merely because he was not required by law to file his record at that term.

Appeal from the Superior Court of Chicago.

The appeal was prayed and allowed in the court below on the 18th day of April, 1864; the appeal bond was filed on the 19th day of the same month, being the first day of the present term of this court. The appellants filed their record in this court on the third day of the term; errors were assigned, and the appellees joined in error on that day.

On the 21st day of the same term of this court, the appellants moved the court to continue the cause until the next term, upon the ground that thirty days had not intervened between the making of the appeal and the first day of this term by the court.

Messrs. Bass, and Farwell & Smith, for the appellants.

Messrs. F. H. Winston, and Scammon, McCagg & Fuller, for the appellees.

Per Curiam:

As there were not thirty days between the time of making the appeal and the sitting of this court at the present term, the appellants were not required, under the provisions of the statute on that subject, to file their record until the third day of the next term. Rev. Stat. 1845, 420, § 48.. But they have seen proper to file the record at this term; the errors have been assigned and the appellees have .joined in error.

The appellants having voluntarily brought the appeal into this court, and subjected themselves to its control, though Sooner than was required by law, and the appellees having appeared and joined in error, the case must stand for hearing at this term, the same as if the cause were here under the strict requirements of the statute.

Motion denied.