Dyniewicz v. Benziger

Appellate Court of Illinois

Dyniewicz v. Benziger

87 Ill. App. 590, 1899 Ill. App. LEXIS 455

DecidedFebruary 5, 1900

StatusPublished

This text of 87 Ill. App. 590 (Dyniewicz v. Benziger) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dyniewicz v. Benziger, 87 Ill. App. 590, 1899 Ill. App. LEXIS 455 (Ill. Ct. App. 1900).

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Opinion

Mr. Presiding Justice Sears

delivered the opinion of the court.

The question presented upon this appeal, and determinative thereof, is as to whether it was error to deny the motion of plaintiff in error to strike the cause from the short cause calendar, and hence- error to dispose of the suit as a cause properly upon that calendar. W e are of opinion that this question is definitely settled by the decision of our Supreme Court in Vallens v. Hopkins, 157 Ill. 267.

It appears from the record that there was a rule of the County Court in effect when this cause was disposed of, that no cause should be noticed for the short cause calendar when not at issue. This cause was not at issue upon October 22, 1898, for the transcript of the judgment of the justice of the peace had not then been filed ten days before that term. The reasonable application of the court rule and the effect of the decision above cited, leave no room for doubt that it was error to deny the motion to strike the cause from the short cause calendar and to proceed to a disposition of the suit.

Nor was the right of plaintiff in error in this instance waived by delay in presenting his motion. The first day upon which the County Court could properly enter such orders in the cause was November 14, 1898. Upon that day, before the cause was called for trial, and again when it was so called, the motion was interposed. The judgment is reversed and the cause is remanded.

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Mr. Presiding Justice Sears

delivered the opinion of the court.

The question presented upon this appeal, and determinative thereof, is as to whether it was error to deny the motion of plaintiff in error to strike the cause from the short cause calendar, and hence- error to dispose of the suit as a cause properly upon that calendar. W e are of opinion that this question is definitely settled by the decision of our Supreme Court in Vallens v. Hopkins, 157 Ill. 267.

It appears from the record that there was a rule of the County Court in effect when this cause was disposed of, that no cause should be noticed for the short cause calendar when not at issue. This cause was not at issue upon October 22, 1898, for the transcript of the judgment of the justice of the peace had not then been filed ten days before that term. The reasonable application of the court rule and the effect of the decision above cited, leave no room for doubt that it was error to deny the motion to strike the cause from the short cause calendar and to proceed to a disposition of the suit.

Nor was the right of plaintiff in error in this instance waived by delay in presenting his motion. The first day upon which the County Court could properly enter such orders in the cause was November 14, 1898. Upon that day, before the cause was called for trial, and again when it was so called, the motion was interposed. The judgment is reversed and the cause is remanded.

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87 Ill. App. 590, 1899 Ill. App. LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyniewicz-v-benziger-illappct-1900.

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