Harry C. Roberts v. Theodore Formhalls.

1. Process—when void—how cured. Where, in an action brought before a justice of the peace, the defendant' appeared and defended the suit, and took an appeal: Seld, that an objection for the first time, made in the appellate ■ court, that the summons was void, for any reason whatever, came too late.

2. Justice or the peace—in actions before—when, immaterial whether summons has been issued. In an action before a justice of the peace, it is immaterial whether a summons has been issued by him or not, if the party defendant appears and defends and takes an appeal, as he can never afterwards question the mode by which he was brought into court.

Appeal from the County Court of LaSalle County; the Hon. P. K. Leland, Judge, presiding.

The facts are stated in the opinion.

Messrs. Bull & Follett, for the appellant.

Mr. Oliver C. Gray, for the appellee.

Mr. Chief Justice Breese

delivered the opinion of the Court

This was, originally, a proceeding before a justice of the peace of LaSalle county, instituted by Harry C. Roberts against Theodore Formhalls, and a judgment recovered by the *67plaintiff against the defendant, for eighty-two dollars damages, and costs, after a full hearing had in that court. The defendant appealed to the County Court, and in that court entered his motion to dismiss the suit, because the summons issued by the justice of the peace had no revenue stamp upon it. This motion was allowed by the court and the suit dismissed.

To reverse this judgment, the plaintiff has • appealed to this court, and questions the right of that court so to dispose of his suit.

Should it be admitted the summons was void for want of a stamp, still the defendant appeared before the justice and made no objection to the writ, but went into a full examination of the matters in controversy, and took an appeal to the County Court. All this was a waiver of any defect in the process, and brings the case within those cited by the appellant, decided by this court. O. & M. R. R. Co. v. McCutchen, 27 Ill. 10; Frye v. Tucker, 24 ib. 181; Shook v. Thomas, 21 ib. 87; Vaughn v. Thompson, 15 ib. 39; and Swingley v. Haynes, 22 ib. 214.

It matters not whether there be or not, a summons issued by a justice of the peace, if the party defendant appears and defends, and takes an appeal; he can never afterwards question the mode by which he was brought into court.

The most that can be urged against this summons is, that it was void, but the defendant .obeyed it, without questioning it, and made his defense, and took an appeal. It is too late now, to object that the summons was void for any reason.

The judgment of the County Court, dismissing the suit, is reversed, and the cause remanded with directions to proceed in the cause.

Judgment reversed.