Holliday v. Swailes

Illinois Supreme Court

Holliday v. Swailes

2 Ill. 515

DecidedDecember 15, 1838

StatusPublished

This text of 2 Ill. 515 (Holliday v. Swailes) 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

Holliday v. Swailes, 2 Ill. 515 (Ill. 1838).

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Opinion

Wilson, Chief Justice,

delivered the opinion of the Court:

The record shows this to have been a proceeding, under the “Jlct regulating Inclosures”

(1) and that upon the application of Swailes to two justices, they rendered a judgment in his favor against Holliday for $58 80, being a moiety of the estimated cost of a division fence. From this judgment Holliday appealed to the Circuit Court, and moved the Court to reverse the judgment upon the ground that he had not appeared before the justices, or been notified to do so, which also appears from the record. The Court overruled this motion, and, upon the application of Swailes, dismissed the appeal. In support of this decision, it is argued, that inasmuch as the act authorizing this proceeding, does not require the defendant to be notified, nor provide for an appeal from the justices’ judgment, that therefore no notice is necessary, and that the judgment is final. The correctness of this inference cannot be admitted. If it is even conceded that the act conferring general jurisdiction on justices, which requires “ all suits before them to be commenced by summons,” is to be construed to apply only to cases arising under that act, it was nevertheless necessary that the justices should have notified the defendant of the prosecution against him. It would be a violation of one of the first principles of justice and of judicial proceedings, to try and decide upon the rights of an individual either civilly or criminally, without notice; and consequently without affording him an opportunity of defending himself. The question of appeal is settled by the act allowing appeals in certain cases. (1) That act authorizes appeals in qui tarn, and other actions for forfeitures and penalties. This case is of the latter denomination. The warrant against Holliday was for a claim in the nature of a penalty charged to have been incurred by him in neglecting to make and keep in repair a division fence between. him and the plaintiff agreeably to the act regulating enclosures.

The judgment of the Circuit Court is therefore reversed, and also that of the justices, for irregularity.

Judgment reversed.

' Note. See Hubbard et al. v. Freer, Ante 467, and note; Waldo et al. v. Averett, Ante 487.

R. L. 261; Gale’s Stat. 277.

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Wilson, Chief Justice,

delivered the opinion of the Court:

The record shows this to have been a proceeding, under the “Jlct regulating Inclosures”

(1) and that upon the application of Swailes to two justices, they rendered a judgment in his favor against Holliday for $58 80, being a moiety of the estimated cost of a division fence. From this judgment Holliday appealed to the Circuit Court, and moved the Court to reverse the judgment upon the ground that he had not appeared before the justices, or been notified to do so, which also appears from the record. The Court overruled this motion, and, upon the application of Swailes, dismissed the appeal. In support of this decision, it is argued, that inasmuch as the act authorizing this proceeding, does not require the defendant to be notified, nor provide for an appeal from the justices’ judgment, that therefore no notice is necessary, and that the judgment is final. The correctness of this inference cannot be admitted. If it is even conceded that the act conferring general jurisdiction on justices, which requires “ all suits before them to be commenced by summons,” is to be construed to apply only to cases arising under that act, it was nevertheless necessary that the justices should have notified the defendant of the prosecution against him. It would be a violation of one of the first principles of justice and of judicial proceedings, to try and decide upon the rights of an individual either civilly or criminally, without notice; and consequently without affording him an opportunity of defending himself. The question of appeal is settled by the act allowing appeals in certain cases. (1) That act authorizes appeals in qui tarn, and other actions for forfeitures and penalties. This case is of the latter denomination. The warrant against Holliday was for a claim in the nature of a penalty charged to have been incurred by him in neglecting to make and keep in repair a division fence between. him and the plaintiff agreeably to the act regulating enclosures.

The judgment of the Circuit Court is therefore reversed, and also that of the justices, for irregularity.

Judgment reversed.

' Note. See Hubbard et al. v. Freer, Ante 467, and note; Waldo et al. v. Averett, Ante 487.

R. L. 261; Gale’s Stat. 277.

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2 Ill. 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holliday-v-swailes-ill-1838.