McDonald v. Williams

41 Ill. App. 378, 1891 Ill. App. LEXIS 146

• Court: Appellate Court of Illinois
• Decided: November 2, 1891
• Status: Published

Opinion

Mobah, J.

The court properly refused to quash the writ of certiorari. The allegations of the petition clearly show that the judgment as entered -by the justice of the peace on his docket was unjust and erroneous, and it sufficiently shows that it was not in the power of petitioner to take an appeal in the ordinary way, and that no negligence or lack of diligence on his part prevented such appeal being taken.

Having heard the justice announce his judgment after the hearing of the evidence, petitioner was justified in relying on said announcement as being the judgment, and there was no lack of diligence in his not examining the wrapper or looking at the docket, in order to see that the judgment was minuted and written in the docket as it was announced by the justice. McNerney v. Newberry, 37 Ill. 91; Pierce v. Wade, 19 Ill. App. 185; O’Hara v. O’Brien, 4 Ill. App. 154.

The judgment as announced was in his favor—was all he asked, and nothing occurred to put him on notice that the judgment thus announced was not the one recorded till after the time allowed by law to take an appeal had lapsed.

The language of cases cited and relied on by appellant’s counsel must be taken in connection with the facts which the records in those cases presented. Where one knows the facts as they really are, or fails to know them by reason of his own lack of diligence, he may be required to show that it was impossible or physically out of his power to take the appeal in the ordinary way before he will be entitled to a certiorari; but when one, without negligence on his part, is without knowledge of the judgment from which he would appeal, the conditions do not exist which require him to use extraordinary diligence to perfect the appeal. One who is ignorant of a given condition is powerless to meet or provide against it.

The judgment will be affirmed.

Judgment affirmed.