Lee v. People ex rel. Davault

30 N.E. 690, 140 Ill. 536

• Court: Illinois Supreme Court
• Decided: March 28, 1892
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court;

The question here is, whether an appeal lies directly to the Appellate Court from a judgment of the county court in - a prosecution for bastardy, or must it be prosecuted to the circuit court of the county. In Lewis v. The People, 82 Ill. 104, we held that section 187 of chapter 37 of the Revised Statutes of 1874 allowed an appeal from the county court to the circuit court in all eases not otherwise provided for in the 188th section of the same chapter; that the latter section provided for appeals or writs of error only in judgments for the sale of lands for taxes and special assessments, and from orders on applications by executors, administrators, guardians and conservators for the sale of real estate, and so, not iñcluding prosecutions for bastardy, they are necessarily within the 187th section, and the appeal in such case must be to the circuit court, alone. That ruling was followed in Hauskins v. The People, 82 Ill. 193, and Stanley v. The People, 84 id. 212. The ruling seems to have been recognized by the court in Scharf v. The People, 134 Ill. 246, wherein it was said the defendant was permitted the verdict of two juries. But that remark was entirely obiter, as there was nothing in the case then before the court calling for it.

Since the decision in the Lewis case, and other cases decided upon the ruling in that case, the General Assembly has created the Appellate Court, and by an amendment to section 8 of that act it is now provided that the Appellate Court “shall have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the * * * county courts, * * * in any suit or proceeding at law or in chancery other than criminal cases not misdemeanors,” etc. (Laws of 1887, p. 156.) This operates as an amendment of section 88 of the Practice act, and it should be read and construed as a part thereof. When it is so read, it is plain the ■effect is to give the appeal in the bastardy case direct to the Appellate Court, for although a bastardy proceeding is not a suit at common law, it is clearly “a proceeding at law.” The manifest purpose is to make the appeal, in all cases enumerated, from the final order, judgment or decree of the county court to the Appellate Court.

The Appellate Court erred in dismissing the appeal, and for that error its judgment is reversed and the cause is remanded.

Judgment reversed.