Schmitt v. Edward Hines Lumber Co.

124 Ill. App. 319, 1906 Ill. App. LEXIS 35

• Court: Appellate Court of Illinois
• Decided: January 18, 1906
• Docket: Gen. No. 12,237
• Status: Published

Opinion

Mr. Justice Ball

delivered the opinion of the court.

The motion to quash the writ admitted that the material facts of the petition, so far as they were well pleaded, were true. Such a petition must stand on its own merits, and must be tested by itself, without extraneous support. Davis v. Randall, 26 Ill. 245.

The right to a writ of certiorari is controlled by the statute, and the petition therefor is construed strictly against the petitioner. Cushman v. Rice, 1 Scam., 565; Davis v. Randall, 26 Ill., 243; Doan v. Sibbit, 61 Ill., 485; First Nat. Bk. v. Breseford, 78 Ill., 391; The President etc. v. Kemper, 88 Ill., 579.

The statute provides that the petition for a writ of certiorari shall show that the judgment before the justice was not the result of negligence of the petitioner; that the judgment in his opinion is unjust and erroneous, setting forth wherein the injustice and error consists; and that it was not in his power to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing. Hurd, 1903, sec. 186, ch. 79.

Applying this statute to the facts stated in the petition, it is clear that it is insufficient.' Appellant was regularly summoned in the justice suit. He employed an attorney, who was present in court the day the judgment was entered, and who, instead of seeing to it that the cause was regularly continued, and without examining the justice docket, took the promise of the attorney for appellee that this would be done, and he notified before judgment was taken. Before the time to appeal had expired, appellant knew that judgment had been entered. Within twenty days thereafter his attorney had several interviews with the attorney for appellee, but instead of taking and perfecting an appeal he again took the word of the man, who before that time had deceived him, that the judgment would be set aside and appellant would be let in to defend. This evidence shows a lack of reasonable care upon the part of Homer to enforce the rights of his client; and it also shows that it was in the power of appellee to take an appeal in the ordinary way. The negligence of Horner is the negligence of appellant.

At a date subsequent to the entry of a judgment in his court, a justice of the peace had no power to set aside that judgment, and to let the defeated party in to defend. We must presume that appellant knew this rule of law. St. Louis v. Gundlach, 69 Ill. App., 192.

Both parties in this ease appeared in the Circuit Court. Appellant was present when the motion to quash the writ was heard and decided. Ho objection based upon the absence of the transcript of the justice of the peace is found in the record. That objection cannot be made for the first- time in this court. Pearce v. Swan, 1 Scam., 269; Jarrett v. Phillips, 90 Ill., 237; Darmstaedter v. Armour, 17 Ill. App., 285; Hanchett v. Williams, 24 Ill. App., 56.

That appellee afterwards obtained judgment against the Schmitt-Bromann Company for this same indebtedness, does not aid appellee. Two or more separate judgments may be taken upon the same cause of action, but there can be one satisfaction only. The petition does not allege that the judgment against said corporation had been paid in whole or in part.

The judgment of the Circuit Court is affirmed.

Affirmed.