Smith v. Irwin

Illinois Supreme Court

Smith v. Irwin

10 Ill. 268

DecidedDecember 15, 1848

StatusPublished

This text of 10 Ill. 268 (Smith v. Irwin) 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

Smith v. Irwin, 10 Ill. 268 (Ill. 1848).

Pincite

Opinion

The Opinion of the Court was delivered by

Treat, C. J.

This judgment must be reversed. The Court had no jurisdiction over the person of the plaintiff in error. The former provision of the statute, authorizing the trial of an appeal case at the second term after the taking of the appeal, whether the appellee be summoned or not, was not incorporated into the Revised Statutes; and .as the law now stands, there cannot be a trial of an appeal case until the appellee is before the Court by the service of process or the entry of an appearance. The 64th section of 59th chap. Rev. Stat. does not embrace the case of an ordinary appeal, but only applies to cases in which the appeal is prosecuted by one of several parties to a judgment, where, as to the parties not joining in the appeal, the cause may be ¡ heard at the second term. The former provision, no doubt inadvertently left out of the revision, was a salutary one in practice, and may with much propriety be re-enacted by the Legislature.

The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings.

Judgment reversed.

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The Opinion of the Court was delivered by

Treat, C. J.

This judgment must be reversed. The Court had no jurisdiction over the person of the plaintiff in error. The former provision of the statute, authorizing the trial of an appeal case at the second term after the taking of the appeal, whether the appellee be summoned or not, was not incorporated into the Revised Statutes; and .as the law now stands, there cannot be a trial of an appeal case until the appellee is before the Court by the service of process or the entry of an appearance. The 64th section of 59th chap. Rev. Stat. does not embrace the case of an ordinary appeal, but only applies to cases in which the appeal is prosecuted by one of several parties to a judgment, where, as to the parties not joining in the appeal, the cause may be ¡ heard at the second term. The former provision, no doubt inadvertently left out of the revision, was a salutary one in practice, and may with much propriety be re-enacted by the Legislature.

The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings.

Judgment reversed.

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Bluebook (online)

10 Ill. 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-irwin-ill-1848.