McCall v. Lesher, 7 Ill. 46, 2 Gilm. 46 (1845)

Dec. 1845 · Illinois Supreme Court

7 Ill. 46, 2 Gilm. 46

James B. McCall et al., appellants, v. Jacob Lesher et al., appellees.

Appeal from Wabash.

A motion to dismiss an appeal in the Supreme Court comes too late after joinder in error.

In this case, the counsel for the appellees moved the Court to dismiss the appeal, first, because the appeal was prayed for by, and allowed to all the plaintiffs below, but the appeal bond was executed by a part of them only; and secondly, because the decree set forth in the bond is not the same as that sought to be reversed, but varies therefrom.

A. Lincoln, for the appellees,

in support of the first point, cited Carson v. Merle, 3 Scam. 169, and Ryder v. Stevenson, Ib. 539. As to the second point, Brooks v. The President, &c., of Jacksonville; 1 U. S. Dig. 180, § 424, and cases there cited; Commonwealth v. Dunham, 22 Pick. 11.

S. T. Logan, for the appellants,

resisted the motion.

The motion comes too late after a joinder in error. Pearce v. Swan, 1 Scam. 266; Mandeville v. Riggs, 2 Peters, 482.

Where a Court has general jurisdiction, and the party submits himself to that jurisdiction by joining in error, he is thereby precluded from making this motion.

Lincoln, in conclusion,

contended that this motion could not be regarded as a preliminary one, in the sense used in the cases cited by counsel for the appellees.

The Opinion of the Court was delivered by

Treat, J.

In this case, after joinder in error, the defendants move the Court to dismiss the appeal, because of a defective appeal bond.

In our opinion, the motion comes too late. An appeal is one of the modes of bringing cases into this Court. By joining in error, the defendants submit the case to the judgment of the Court, and waive all irregularities in the mode of bringing it here. As well may a defendant, who has pleaded to the declaration, ask to have the suit dismissed because of a defective summons. Preliminary objections of this kind must always be insisted on before pleading to the merits.

The motion -is denied.

■Motion denied.