Boyd v. Kocher

Illinois Supreme Court

Boyd v. Kocher

31 Ill. 295

CourtIllinois Supreme Court

DecidedApril 15, 1863

StatusPublished

Cited by17 cases

This text of 31 Ill. 295 (Boyd v. Kocher) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boyd v. Kocher, 31 Ill. 295 (Ill. 1863).

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Opinion

Mr. Justice Breese

delivered the opinion of the Court.

This record shows a case originally brought before a justice of the peace, and taken by appeal to the Circuit Court, under section 60, chapter 59, R. S. That section is as follows: “ The party desiring such appeal may file his bond in the office of the justice who shall have rendered the judgment; such bond to be approved by such justice, whose duty it shall be to suspend all proceedings in the case; and if execution shall have been issued, he shall recall the same; and who shall, within twenty days after receiving and approving of the appeal bond, file the same in the office of the clerk of the Circuit Court, together with all the papers and transcripts of the judgment he had given, with a certificate, under his hand, that the said transcript and papers contain a full and perfect statement of all thb proceedings before hfm.” Scales’ Comp. 708.

It is apparent from this section when an appeal is perfected before a justice of the peace, no summons is necessary to either party. The party appealing is bound to follow up the appeal which he has himself taken, and so is the appellee, as in an appeal taken from the Circuit Court to this court.

Had the appeal been taken under section sixty-one, a summons would have been necessary, and the case might then be likened to the case of Hooper v. Smith, 19 Ill. 53.

If it was necessary to summon the appellee to the Circuit Court, it was a duty the plaintiff here should have performed, by procuring the necessary process. He did not do so, he took no steps to bring the party into court, and he should not be permitted to derive an advantage from his own omission of duty, granting that such was his duty.

In cases brought to the Circuit Court under section sixty, the parties must follow up their appeal, in the same manner as in appeals from the Circuit to the Supreme Court. The plaintiff' in error not having so done, his appeal was properly dismissed. The judgment is affirmed.

Judgment affirmed.

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Mr. Justice Breese

delivered the opinion of the Court.

This record shows a case originally brought before a justice of the peace, and taken by appeal to the Circuit Court, under section 60, chapter 59, R. S. That section is as follows: “ The party desiring such appeal may file his bond in the office of the justice who shall have rendered the judgment; such bond to be approved by such justice, whose duty it shall be to suspend all proceedings in the case; and if execution shall have been issued, he shall recall the same; and who shall, within twenty days after receiving and approving of the appeal bond, file the same in the office of the clerk of the Circuit Court, together with all the papers and transcripts of the judgment he had given, with a certificate, under his hand, that the said transcript and papers contain a full and perfect statement of all thb proceedings before hfm.” Scales’ Comp. 708.

It is apparent from this section when an appeal is perfected before a justice of the peace, no summons is necessary to either party. The party appealing is bound to follow up the appeal which he has himself taken, and so is the appellee, as in an appeal taken from the Circuit Court to this court.

Had the appeal been taken under section sixty-one, a summons would have been necessary, and the case might then be likened to the case of Hooper v. Smith, 19 Ill. 53.

If it was necessary to summon the appellee to the Circuit Court, it was a duty the plaintiff here should have performed, by procuring the necessary process. He did not do so, he took no steps to bring the party into court, and he should not be permitted to derive an advantage from his own omission of duty, granting that such was his duty.

In cases brought to the Circuit Court under section sixty, the parties must follow up their appeal, in the same manner as in appeals from the Circuit to the Supreme Court. The plaintiff' in error not having so done, his appeal was properly dismissed. The judgment is affirmed.

Judgment affirmed.

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Bluebook (online)

31 Ill. 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-kocher-ill-1863.

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