230 Ill. App. 266 | Ill. App. Ct. | 1923
delivered the opinion of the court.
This is a proceeding under section 81 of the Admin-, istration Act [Cahill’s Ill. St. ch. 3, [¶] 82] .and was instituted in the county court of Wabash county. That court found that a certain note and mortgage in the hands of appellant belonged to the decedent at the time of his death and that the same should be turned over to the executor. A motion by appellee to strike the transcript of the record from the files was taken with the case. The first ground of said motion is that appellant failed to give five days’ notice of the time when and the place where she would file her praecipe for a record, together with a copy of such praecipe, as is required by section 81 of the Practice Act. [Cahill’s Ill. St. ch. 110, [¶] 81]. The giving of the notice is not an indispensable prerequisite to- the right to have the record reviewed and the point is not well taken for the reasons stated in People v. Union Gas & Electric Co., 258 Ill. 193.
The second ground of the motion is that the several parts of the record are not arranged' in chronological order as required by rule 10 of this court, nor are the clerk’s fees taxed thereon as required by said rule. That rule simply deprives appellant of the right to have the clerk’s fees taxed as costs in case he fails to have the record prepared in the manner specified. The third ground of the motion is that the record contains no bill of exceptions. A bill of exceptions may or may not be necessary. City of Chicago v. Mecartney, 216 Ill. 377. The fourth ground is that the record does not show the order or judgment appealed from, but ,by leave of this court appellant has supplied the deficiency. The fifth ground is^ that the transcript does not contain the whole record. If appellee thought that something essential had been omitted, it was his duty to supply it. People v. Union Gas & Electric Co., supra. The motion to strike the transcript of the record from the files is overruled.
The affidavit required by the statute as a basis for the proceedings is not in the transcript. George Mundy and William Mundy were parties, but there seems to be some controversy as to whether appellant was a respondent. At any rate, it appears that the ownership of a certain note and mortgage payable to the deceased and which had been assigned by him to appellant was called in question. The county court held that they were the property of the deceased and ordered them delivered to the executor but pending an appeal they should remain with the clerk of the court. The record shows that respondents excepted to the judgment and prayed an appeal to the circuit court, which was allowed on filing bond in the sum of $300 with security to be approved by the clerk of the county court. '
Appellant presented her appeal bond in the sum of $300, signed by herself and sureties, and the same was approved by the clerk of the county court. In the circuit court appellee moved to dismiss the appeal because the bond was not signed by all of the respondents and because it was not approved by the county court. Appellant filed a cross motion for leave to file a sufficient bond and the same was overruled. The court sustained the original motion and dismissed the appeal at appellant’s costs.
. In a case of this kind the right to appeal is governed by section 124 of the Administration Act [Cahill’s Ill. St. ch. 3, [¶] 126]. Any person who may feel bimself aggrieved by the judgment of the county court may appeal whether he is a party to the record or not. Collins v. Kinnare, 89 Ill. App. 236; Weer v. Gand, 88 Ill. 490. The appeal may be perfected in the same manner as appeals from justices of the peace. Beardsley v. Hill, 61 Ill. 354. It is not necessary that an appeal should be prayed in the county court or that the court should enter an order allowing the appeal. Fix v. Quinn, 75 Ill. 232; Haaren v. Miller, 139 Ill. App. 405. It necessarily follows that appellant had a right to appeal without the other respondents signing the appeal bond.
In such a case the appeal bond should be approved by the county court and the court could not delegate such authority to the clerk but the circuit court should not dismiss the appeal without giving appellant an opportunity to remedy the defect. Hepner v. Hepner, 112 Ill. App. 598; Mertz v. Mehlhop, 117 Ill. App. 77. The statute provides that no appeal from a justice of the peace shall be dismissed for any informality in the appeal bond. But it shall be the duty of the court before whom the appeal may be pending to allow the party to amend the same within a reasonable time, so that a trial may be had on the merits of the case. Weist v. People, 39 Ill. 507; Enright v. Rehbach, 133 Ill. App. 50. Almost any attempt, made in good faith, to execute an appeal bond requires the court to allow such amendments as will obviate the imperfection. Hinman v. Kitterman, 40 Ill. 253.
It is contended by appellee that the propriety of the judgment of the circuit court cannot be questioned because there is no bill of exceptions. In Randolph v. Emerick, 13 Ill. 345, there was a motion to dismiss the suit for want of a cost bond, on the ground that plaintiff was a nonresident at the time suit was begun. The motion was allowed and the suit dismissed. On appeal it was contended that the order of dismissal was not open to review because there was no bill of exceptions. The conrt said: “It affirmatively appears, from an entry on the record, that the court sustained a motion to dismiss, which the defendant had no right to interpose. The office of a bill of exceptions is to introduce matter into the record which does not already appear there. Here the character of the motion and the circumstances under which it was made clearly appear on the face of the record; and a bill of exceptions would not have brought any new matter into the record. If the record failed to show the nature of the motion, a bill of exceptions might be necessary to present the question, for otherwise this court would not be advised of the ground upon which the suit was dismissed.” That rule has been recognized in the following cases: Blair v. Ray, 103 Ill. 615; Offield v. Siler, 15 Ill. App. 308; City of Rockford v. Compton, 115 Ill. App. 406; Esmond v. Esmond, 142 Ill. App. 233.
If we are right in our conclusions, the circuit court erred in dismissing the appeal without allowing appellant to cure the imperfection in her appeal bond. But there is another reason why the judgment should “be reversed and that is that there is no transcript from the county court shown in the record. Without such a transcript the circuit court had no jurisdiction of the subject-matter and no power to try or dismiss the appeal. Reed v. Driscoll, 84 Ill. 96; Vallens v. Hopkins, 157 Ill. 267; Mayer v. Schneider, 106 Ill. App. 276; Bromberg v. People, 136 Ill. App. 602.
If the appeal bond is signed by proper sureties it may be approved by the circuit court. Hepner v. Hepner, 112 Ill. App. 598. For the reasons aforesaid the judgment is reversed and the cause remanded.
Reversed and remanded.
