McNerney v. Newberry

Mr. Justice Breese delivered the opinion of the court: This was a suit before a Justice of the Peace, and taken by certiorari, to the Court of Common Pleas of Cook county. A motion was made in that court, to dismiss the certiorari for insufficiency of the petition, which the court denied, and on trial had, rendered a judgment for the defendant. The plaintiff brings the case here by writ of error, wherein the principal error assigned, is in refusing to dismiss the certiorari. ' It is insisted by the plaintiff in error, that the petition is not in conformity to the statute, that the statute requires the petition should show that the judgment was not the result of negligence on the part of the petitioner, and this petition in fact, admits negligence. The petition, so far as we can see, is in substantial compliance with the statute. It appears from it, ‘that the petitioner had been summoned as garnishee in a great number of cases; that he appeared before the justice and fully answered, and was formally discharged by the justice, and went about his business which called him away from Chicago the place of trial, and which occupied his attention for many days, he, during all the time, having no reason to suppose that a judgment had been rendered against him. The discharge by the Justice of the Peace, necessarily quieted the mind of the petitioner, and lulled him into security and inaction, which cannot be attributed to negligence on his part. The case shows there was no negligence. The judgment is shown to be unjust, by the fact, that he owed nothing to the party to whom he was alleged to be the debtor, and that he had nothing in his possession or under his control belonging to the debtor. The petition also shows why he could not take an appeal in the ordinary way, and that was because he did not know of the judgment, until it was too late to appeal. We see no error in the record and must affirm the judgment. Judgment affirmed.