Maplewood Coal Co. v. Phillips

Mr. Chief Justice Hand delivered the opinion of the court: In Bacon v. Lawrence, 26 Ill. 58, it was held both parties may appeal from the decision of a justice of the peace, and if only one party appeals he may dismiss his appeal against the wish of the other. It is, however, contended by the appellant that section 31 of the Practice act, (3 Starr & Cur. Stat. p. 3016,) which reads as follows: “When such plea or notice of set-off shall have been interposed, the plaintiff shall not be permitted to dismiss his suit without the consent of the defendant, or leave of the court,”—should govern this appeal, and prohibited the appellee from dismissing his appeal in the city court. We are of the opinion that section has no application to the dismissal of an appeal. The party appealing" has the right to control his appeal, and may dismiss the same at any time before the case is finally disposed of, as a matter of right. If the appellant was not satisfied with the judgment of the justice he should have appealed therefrom, and having failed to appeal he will be deemed to have acquiesced therein and to now be content therewith. The judgment of the Appellate Court will be affirmed. Judgment affirmed.