Gen. No. 13,628 | Ill. App. Ct. | Feb 14, 1908
delivered the opinion of the court.
As ground for reversal it is urged that the court had no jurisdiction to proceed with the trial in the absence of a transcript of the proceedings before the justice. The objection is well taken. No transcript appears in the record nor is it claimed that any was ever filed. The statute provides that the justice shall return all the papers “and a transcript of his docket in the case to the clerk of the court to which the appeal is taken, with a certificate under his hand that said transcript and papers contain a full and perfect statement of all the proceedings before him.” R. S., chapter 79, section 115. Without such a transcript the Circuit Court had no jurisdiction of the subject-matter and, even though it had jurisdiction of the parties, was without authority to enter judgment until there was a transcript on file. Such has been the law in this State for many years (Reed v. Driscoll, 84 Ill., 96" date_filed="1876-09-15" court="Ill." case_name="Reed v. Driscoll">84 Ill., 96—98) and the statute still requires the justice on appeal from his judgment to return such transcript to the Clerk of the Circuit Court. “Proceedings in the Circuit Court are based on the transcript and it has uniformly been held that without a transcript of the proceedings before the justice the Circuit Court has no jurisdiction of the subject-matter.” Demilly v. Grosrenaud, 201 Ill., 272" date_filed="1903-02-18" court="Ill." case_name="Demilly v. Grosrenaud">201 Ill., 272—274. That the Circuit Court was without jurisdiction of the subject-matter “was an objection that could not be waived.” Idem. It was therefore unnecessary for appellants in that case to raise the objection in said Circuit Court. In Jarrett v. Phillips, 90 Ill., 237" date_filed="1878-09-15" court="Ill." case_name="Jarrett v. Phillips">90 Ill., 237, there was an objection that the transcript “was not filed ten days before the commencement of the term of court to which the appeal was taken,” and it was held that the failure to file the transcript in the time required by the statute was not essential to the jurisdiction and could be waived, the transcript apparently having been on file when the parties voluntarily submitted to trial. Otherwise it is said the court would have had no jurisdiction under the decision in Hayward v. Ramsey, 74 III., 372. In Hanchett v. Williams, 24 Ill. App., 56" date_filed="1887-11-23" court="Ill. App. Ct." case_name="Hanchett v. Williams">24 Ill. App., 56-58, cited by appellee, the objection was “to the insufficiency of the transcript,” not that there was no transcript as in the case at bar. There is a concluding sentence in that opinion to the effect that where the parties appear and try the cause on the merits without objection “the court will have jurisdiction without a transcript.” This is to be read in the light of the facts in that case. Otherwise it would be mere dictum and erroneous. We are unable to concur with what is said in Schmitt v. Hines Lumber Co., 124 Ill. App., 319" date_filed="1906-01-18" court="Ill. App. Ct." case_name="Schmitt v. Edward Hines Lumber Co.">124 Ill. App., 319—322, in view of what is said in Demilly v. Grosrenaud, supra.
The judgment of the Circuit Court must be reversed and the cause remanded.
Reversed and remanded.