90 Ill. App. 269 | Ill. App. Ct. | 1900
delivered the opinion of the court.
In this case a judgment was entered by a justice of the peace against the appellant and Peter Erickson. From that judgment said Erickson prosecuted an appeal to the Circuit Court, and April 7, 1899, upon" motion of said Erickson it was ordered by the Circuit Court that said appeal be dismissed. Judgment was then and there entered against said Erickson for costs of suit, and it was ordered that & procedendo issue to the justice of the peace. Prior to that date a summons and an alias summons had been issued out of said Circuit Court to be served upon said Erickson, both of which were returned by the sheriff “ not found.”
Said Erickson had a right to dismiss his appeal. Appellant to this court (Ring) was not at the time before the Circuit Court, and that court had not then any jurisdiction over him in this case. The judgment for costs was against Erickson only. In Bacon v. Lawrence, 26 Ill. 53, in the matter of an appeal from a justice of the peace, it was held :
“The appellant had an undoubted right to dismiss his appeal. If the appellee was not satisfied with the judgment of the justice of the peace, he should himself have taken an appeal. By not doing so, he acquiesced in that judgment and must now be content with it.”
That case is cited and approved in In re Story, 120 Ill. 244, 258. By the order of April 7, 1899, the case was fully ended in the Circuit Court and thereafter that court had no jurisdiction therein.
It is, however, recited in this record that April 10, 1899, “said cause was reached on the trial calendar and was called for hearing,” etc.; that appellant Bing then appeared; that the appellee here (Graves) moved the Circuit Court to dismiss the appeal; that said motion was sustained, to which said Bing excepted; that an order was entered by said Circuit Court purporting to dismiss the appeal to that court; that said Bing moved to set aside said order, which motion was denied, and to reverse which this appeal is prosecuted. It does not appear that said Erickson was ever present in the Circuit Court in person, or by attorney, at a.ny time after said suit was dismissed, April 7th, on his motion, or that he ever had any notice of any proceedings in this case had or to be had after that date, and he is not before this court.
It seems probable that the fact that the appeal had been dismissed and final judgment entered in said cause April 7th, was not brought to the attention of the judge who called said cause for trial April 10th. Any and all proceedings in said cause in the Circuit Court after April 7, 1899, are null and void for want of jurisdiction, no motion having been made to set aside and no order entered setting aside the final judgment of April 7, 1899. As the Circuit Court had no jurisdiction in the cause June 17, 1899, when the order purporting to grant an appeal to this court was entered, without having first set aside the final judgment of April 7th, this court has no jurisdiction except to dismiss the appeal to this court. Appeal dismissed.
