Meeks v. Leach

Mr. Justice Scott delivered the opinion of the Court: This suit was originally commenced in the circuit court of Will county, in assumpsit, against plaintiff in error and other makers of the notes declared on. Service was had on the other defendants, and judgment rendered against them by default. Afterwards it was sought to make plaintiff in error a party to the judgment on scire facias. On the 10th day of February, 1877, which was one of the regular days of the January - term of that court, the cause was submitted to the court for trial, without the intervention of a jury, on a plea of nul tiel record, and the court, on finding the issues for plaintiff, assessed his damages at $2513.86, and rendered judgment against plaintiff in error for that amount. It is recited in the record that plaintiff in error entered “his motion in arrest of judgment and for a new trial.” On the 10th day of March, 1877, the cause appears to have been continued to the next term of court. At the following June term of court the cause was stricken from the docket by order of court. The record contains no bill of exceptions, nor do we find anywhere in the record that the “motion in arrest of judgment and for a new trial” was ever disposed of by any action of the court. On the 10th day of September, 1877, a transcript of the record in this case was filed in the office of the clerk of this court. No writ of error or scire facias was in fact ever issued, but defendant entered his appearance by joining in error. At that date the law creating Appellate Courts was in force, and the writ of error should have been sued out of the Appellate Court for the proper district. The case of Fleischman v. Walker, ante, p. 318, is conclusive on this question. No motion has been made to dismiss the cause out of this court, but it is done by this court on its own motion for want of jurisdiction to hear the errors assigned. The writ of error will be dismissed, each party to pay his own costs in this court. Writ of error dismissed.