85 Ill. 290 | Ill. | 1877
delivered the opinion of the Court:
Waiving the question whether the statutory writ of certiorari may be resorted to for the purpose of bringing before the
circuit court, for trial de novo, a cause tried in the county court sitting as a court of probate, we are of opinion the present petition was defective in failing to show that the judgment was not the result of negligence in the petitioner, and that it was not in the power of the petitioner to have taken an appeal in the ordinary way.
The petition shows that the summons was returnable to the May term, 1875, of the Ford county court, and then seems to try to excuse the failure of the petitioner to attend at that term, by alleging that the cause was not set for hearing at that term. If the summons was properly served the requisite time before court, (and this is not negatived,) the cause stood, by virtue of the statute, for hearing at that term, and there was no necessity for a special order of the court setting it down for hearing. The rule laid down in Cushman v. Rice et al. 1 Scam. 566, is, that, “ when a party brings an action, he is bound to attend to it through all its stages, either by himself or agent, and if he omits to do so, he must abide by the consequences of his inattention, unless he set out, with precision, such facts and circumstances as show that it was not in his power to take an appeal in the ordinary way, by the exercise of every reasonable degree of attention and care.” And in Lord et al. v. Burke, 4 Gilm. 367, in speaking of the statute authorizing a certiorari, the provisions of which were substantially the same as the present statute upon that subject, the court, by the judge delivering the opinion, said: “I apprehend that a proper construction of this section of the statute would require a party desiring to appeal from the decision of a justice of the peace, to use something more than ordinary diligence to perfect his appeal, before he would be entitled to bring his cause into the circuit court by writ of certiorari/ nor is it the particular sum in controversy, or the hardship of the case, which will dispense with this diligence.”
The necessity for the attorney in fact of the petitioner to go to Ohio, where the witnesses resided, to arrange about taking their depositions, is not apparent. Why this might not as readily, and with less expense, have been attended to by petitioner, who resided in Ohio, or by some other attorney, residing near the witnesses, is not shown; nor is it shown that the service was such as required a personal visit of the attorney in fact, in any other view; and it does not appear that the attorney in fact had any sufficient reason to assume that the cause was not set for hearing at the May term, 1875. It is not alleged the summons was not served in time for that term; that the case had been ordered continued, or to be heard at a different term, or that those representing the parties had agreed it should not be heard at that term. Besides, it appears that if the attorney in fact had gone to the county seat, immediately after his return from Ohio, he would then have been there in time for the hearing. Moreover, he was notified, by letter, a few days after the judgment was rendered, (which was on the 31st of May,) of the result. He then delayed until the 14th of June, when he went to the county seat and obtained an appeal bond. He then returned to his home, but, instead of having the bond signed and returned at once, he spent two days-—-the 15th and 16th—in Indiana. Then, on the 17th, he inclosed the appeal bond in an envelope, properly addressed, and placed it in the mail. The 19th was the last day within which the appeal could be taken, and, although he says the bond should have reached the county seat on the 17th, it is manifest this could only be anticipated on the assumption of the prompt arrival of mail trains, and the speedy change of mail matter and delivery by the proper officers. There was one change, or transfer, as we understand the petition, of the mail from one road to another, and this, as the public know from experience, is a frequent, if not universal, cause of delay in the transmission of mail matter. "We think, in view of the seemingly unnecessary delay from about the 1st to the 14th of the month, in making an effort to get an appeal bond,—the apparently inexcusable delay by being in Indiana on the 15th and 16th, and the failure, after that time, to adopt a prompt and certain mode of transmitting the appeal bond,—there was a failure to exercise that high degree of diligence to perfect the appeal that this court has uniformly held indispensable to prosecute a writ of certiorari under the statute.
The judgment, however, should have been special, and not general; and for that error it must be reversed, and the cause remanded with directions to the court below to enter judgment against the petitioner, to he paid in the due course of administration.
Judgment reversed.
