Aldrich v. City of Polo

Pillsbuby, J. It is admitted by appellant that the appeal was properly taken by the city and allowed by the magistrate, but it is contended that" the act of the city in appealing did not deprive the defendant below of his right under the statute to an appeal also, and having such right of appeal he could perfect the same by filing his bond in the county court if he so elected. At the time of the rendition of the judgment in this cause the county court had concurrent jurisdiction with the circuit court to hear and determine all appeals taken from the judgments of justices of the peace and police magistrates. Sess. Laws of 1877, page 77. The Circuit and County Courts of Ogle county having equal and concurrent jurisdiction in this appeal from the magistrate it only remains to inquire which court first obtained jurisdiction, as the rule is well settled that in such cases the court first acquiring jurisdiction of the cause will retain it for final determination to the exclusion of the other. Moran v. Piggot, 11 Ill. 85; Stearns v. Stearns, 16 Mass. 167; Smith v. McIves, 9 Wheaton, 523; Merrill v. Lake, 16 Ohio, 373. Comity between courts of equal powers and jurisdiction demands that this rule should be promptly recognized and enforced, for in this way only, can conflict of jurisdiction be avoided. The filing of an appeal bond with the justice, and its approval by him perfects the appeal, Little v. Smith, 4 Scam. 400; and where an appeal is permitted by statute without .bond as in cases of counties, towns, cities and other corporations exempted by statute from giving bonds, it must be held that the allowance of the prayer for an appeal by the court rendering the judgment, in like manner operates to perfect the appeal, and being so perfected, thereafter the cause is pending in the court to which the appeal is taken. Owens v. McKethe, 5 Gil. 79; Reynolds v. Perry, 11 Ill. 534. These cases so hold the rule to be, where the appeal is taken to the Supreme Court, and no reason is perceived why it does not apply in appeals taken to the circuit or county court from the judgments of justices of the peace. The appeal of the city having been perfected to the circuit court, that court first acquired jurisdiction of the subject matter, and could not be ousted of its jurisdiction by the act of the appellant in afterwards filing his appeal bond in the county court. The appellant if he desired to perfect an appeal should have done so by filing his bond with the justice or with the clerk of the circuit court, for while he is not deprived of his right of appeal by the act of the city in first perfecting its appeal, the statute is not to be so construed as to permit the dividing up of an entire cause and trying it by piecemeal in two different courts, having equal jurisdiction. The party first perfecting the appeal having selected the court, and, as we have seen, conferred jurisdiction upon it, the appellee is bound to follow the appeal, and litigate the entire controversy in that tribunal. If he fears that the appellant will dismiss his appeal thereby leaving the judgment in force against him, he can likewise appeal to the same court and have a trial upon the merits. The County Court of Ogle County acquired no jurisdiction to try the cause upon the appeal of the appellant and in striking the cause from the docket committed no error, but pursued the proper practice. Wadhams v. Hotchkiss, 80 Ill. 437. The point is made that the county court erred in entertaining and disposing of the motion as no appellee summons had been issued or served, and the appellee not having entered its appearance in writing ten days before the term, was not in a position to take any affirmative action in the case, as it was not in a position to be forced to trial. This objection can have no force as it appears that the cause had been continued for two terms of court by the agreement of the parties. The appellee having appeared in open court and stipulated to continue, the cause was in court for all purposes, and no summons was necessary to confer upon the court jurisdiction of the person. Ho error appearing in the record, the judgment of the county court will be affirmed. Judgment affirmed. .