Carr v. Miner

40 Ill. 33

• Court: Illinois Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

Per Curiam:

We have often decided that under the law as it existed prior to the passage of the act cited, a party could not prosecute an appeal from a judgment which was in his favor. If a successful party was dissatisfied with his judgment, the only mode by which he could have the case reviewed in this court was by writ of error. Addix v. Fahnestock, 15 Ill. 448; Roth v. Smith, MSS. April Term, 1864. The act of 1865, cited by the appellant, while it allows appeals to be prosecuted from all judgments upon which a writ of error may be sued out, will not help the case at bar. That act is prospective only in its operation as regards the provision mentioned. The judgment appealed from was rendered before the passage of that act, and is not within its operation.

The appeal must be dismissed.

Appeal dismissed.

The appellant thereupon, by leave of the court, withdrew the record, and refiled it, asking that a writ of error issue, to be made a supersedeas.

Per Curiam : The judgment below is in favor of the plaintiff here, who now asks that the writ of error be made a supersedeas. We see nothing to be superseded. He surely does not require the restraining power of this court to prevent him from pressing the collection of hi's own judgment. A supersedeas, if allowed, would not have the effect to prevent the clerk from issuing his fee bill to collect the costs occasioned by the parties respectively; it would only restrain the successful party from proceeding under his own judgment, which he need not do unless he chooses so to do.

The application for a supersedeas is denied.