Aiken v. Webster, 7 Ill. 416, 2 Gilm. 416 (1845)

Dec. 1845 · Illinois Supreme Court

7 Ill. 416, 2 Gilm. 416

Henry S. Aiken, appellant, v. Daniel F. Webster, appellee.

Appeal from La Salle.

A. prosecuted an appeal to the Supreme Court, and procured a reversal of the judgment of the Circuit Court for non-joinder in error, but no order was made remanding the cause. More than three years after the reversal, the appellant moved that the cause be remanded for further proceedings, without having notified the appellee of the intended motion: Held, that the motion, if made at the time of the reversal, would have been granted as a matter of course; but if a term has elapsed, that reasonable notice of an application of this character should be given to the adverse party.

In this case, 0. Peters, for the appellant, entered a motion for an order remanding the cause to the Circuit Court of La Salle county for further proceedings, the former judgment of said Court having been reversed at the July term of this Court, 1842. The motion was argued ex parte, and without notice to the appellee.

The Opinion of the Court was delivered by

Treat, J.

Aiken brought an action against Webster. Judgment was rendered therein for the defendant. Aiken prosecuted an appeal to this Court, and at the July term 1842, the judgment was reversed for non joinder in error, but no order was made for the remanding of the case. Aiken now moves the Court to remand the cause for further proceedings.

This motion would have been granted as a matter of course, if asked for at the time the judgment was reversed. But after a term is permitted to elapse, reasonable notice of an application of this character, should be given to the adverse party. It is now more than three years since the reversal of the judgment, and the defendant may regard the suit as fully determined. The consequences of allowing the motion might be an ex parte trial at the Circuit, and the recovery of a most unjust judgment against the defendant. By giving him notice of the application, he would be prepared to follow the case to the Circuit, and have a fair trial on the merits. The motion is denied.

Motion denied.