Garrity v. Bash, 84 Ill. 73 (1876)

Sept. 1876 · Illinois Supreme Court

84 Ill. 73

Patrick L. Garrity v. J. Bash.

Appeal—-from justice of the peace—duty of appellant to file pwperrs and advance fees in circuit court. Where a party appeals from the judgment of a justice of the peace, it is his duty to file the papers in the circuit court, and advance such fees as the statute requires; and if he fails to do so, the appellee may advance such fees and file the papers, and upon notice obtain a rule for appellant to refund the fees so advanced; and if the appellant does not comply with the rule, the court will, in the exercise of a sound discretion, dismiss the appeal.

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.

This action was commenced before a justice of the peace, but defendant not appearing, judgment was rendered against him as by default. From that judgment defendant prosecuted an appeal to the circuit court, by giving the usual bond, but neglected to file the appeal papers in the office of the circuit clerk, whereupon plaintiff took up the papers and advanced “ appeal fees,” as is required by statute. Notice was served upon defendant that a rule would be asked upon him to refund “ appeal fees.” Failing to appear at the time fixed, the court entered a rule on defendant, that he refund such fees instanter, and for non-compliance therewith the appeal was dismissed. A motion was subsequently made to set aside the order of dismissal, but it was overruled, and that decision is assigned for error.

Messrs. Sawin, Jones & Hunting, for the appellant.

Messrs. Lyman & Jackson, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

When defendant perfected his appeal, it was his du.ty to cause the papers in the case to be deposited in the office of the clerk of the circuit court, and advance such fees as are required by statute to be prepaid. That, he neglected to do. On service of notice, a rule was entered against him to refund, instanter, “ appeal fees ” advanced by plaintiff. Failing to appear and show cause against such rule, the court, in the exercise of a sound discretion, as it might well do, dismissed defendant’s appeal.' It does not appear, by affidavit or otherwise, defendant had any defense to the action, and his appeal was properly dismissed for non-compliance with the rule to refund costs advanced.

The judgment will be affirmed.

Judgment affirmed.