Graff v. Smolensky

Garnett, J. A judgment having been rendered for appellant and against appellee, a resident of Mercer County, Illinois, before a justice of the peace of Cook County, on Cctober 6, 1885, the appellee, on April 5, 1886, tiled in the County Court of Cook County his petition for writ of certiorari which was granted, and the cause coming on for trial, appellant submitted a motion to quash the writ. The motion was overruled, and appellant excepted to the ruling. The case was submitted to the court without a jury, and, after hearing the evidence, the trial judge found the issues for appellee and rendered the judgment for costs against appellant. A reversal of the judgment is asked because appellee is said to have been guilty of laches, relying upon appellant’s promise to dismiss the suit before the justice, and in delaying his application for a writ of certiorari. The petition for the Writ stated that on October 4, 1885, two days before the judgment was rendered by the justice, appellant and appellee met together and compromised the matter in dispute, appellee agreeing to pay appellant $27, and, after returning home, to send him a dozen live geese; that on October 5, 1885, he did pay appellant the $27, and appellant then agreed to dismiss the suit; that appellee asked if it would be necessary for him to go, and appellant replied that it was not necessary,'that he would dismiss the suit without judgment or costs to appellee; that appellee relied on appellant’s promise, and did not afterward inspect or examine the docket of the justice, and did not know that the suit was not dismissed or that a judgment was entered until January, 1886; and that on his return home in the month of October, 1885, he had sent to appellee the dozen live geese, as he had agreed, and that he was not, when the action was commenced, nor when the judgment was rendered indebted to appellant, and that the judgment is unjust and erroneous. The petition contains all the allegations required by Sec. 76, Chap. 79, R. S. Appellee had the right to rely upon appellant’s promise to dismiss the suit. The promise was upon a valuable consideration, and appellant was bound thereby. His plea now that he was not worthy of belief, and that appellee was foolish to confide in him, does not conform to the judicial idea of good faith. It is an entirely different'case where a judgment is known to the defendant to have been rendered, and he is persuaded not to appeal by the promise of the plaintiff’s attorney that the judgment will be compromised, as in Stocking v. Knight, 19 Ill. App. 501. An attorney has no authority to make an agreement of that character, and, moreover, it may be doubted whether such an agreement, made when defendant knew of the judgment, could be regarded as taking from the defendant the power to appeal in the ordinary way. The statute gives six months for issuing a writ of certiorari. It is not a question of diligence or laches within the time given by the act. The complaining party may file his petition on the last day of the six months, or he may avail himself of the right as soon as he discovers the wrongful judgment, provided only it is within the period named. No reason appears why any different construction should be given the section in question than has been uniformly given to the act providing that writs of error shall not be brought after the expiration of five years from the rendition of the decree or judgment complained of. The expression of the court in Gallimore v. Dazey, 12 Ill. 142, accords with the common understanding of the profession on this point, and, ui\til otherwise informed by higher authority, we shall adhere to that interpretation. The judgment is affirmed. Judgment affirmed.