Abbott v. Kruse

Gary, J. It is with great reluctance that we reverse this judgment, but we are driven to it by the logic of cases decided by the Supreme Court, The ease is forcible detainer, commenced by the appellee before a justice, and appealed by the appellant to the Superior Court. The clerk certifies to this court a complete transcript of the record in the Superior Court, and in that record there is no complaint as required in such an action. The appeal bond was filed with the justice November 12, 1S88, and in the clerk’s office November 19th, but the transcript was not filed in the Superior Court until March 21, 1889, and then, so far as appears, without any suinmons or complaint. April 7, 1890, the case was called for trial and the appeal dismissed for want of prosecution. May 3, 1890, the appellant moved to set aside the dismissal, and filed an affidavit that there had never been on file in the court, any complaint. As it does not appear who took the transcript from the office of the justice, nor what, if any, papers accompanied it, the appellant may easily have had positive knowledge of the negative to which he swore. In forcible detainer before a justice, a complaint in writing is jurisdictional. Schaumstoeffel v. Belm, 77 Ill. 567; Stolberg v. Ohnmacht, 50 Ill. 442; Center v. Gibney, 71 Ill. 557. And if the justice had no jurisdiction of the case the court on appeal had not. Stolberg v. Ohnmacht, 50 Ill. 442. The case and not the appeal, as the record stood, was subject to dismissal. Unless it was made to appear that a complaint was filed with the justice, and that complaint brought into the Superior Court, or if lost, its loss supplied as pointed out in Reed v. Driscoll, 84 Ill. 96, that was the only course the case could take. Until the court gets jurisdiction of an appeal from a justice by the necessary papers being on file, it can not dismiss the appeal. Reed v. Driscoll, 84 Ill. 96. The statement in the transcript that a summons was issued “ on complaint of John Kruse,” does not warrant a conclusion that a sufficient complaint in writing was filed with the justice. In our judgment it ought to be the law that an appellant from a justice to a court of record should there perfect his appeal by filing all the papers as well as transcript, as he must file in the Supreme Court or this court a complete record, or his appeal should be dismissed; but the rule is so settled the other ' way that it can be changed only by legislation. The judgment must therefore be reversed and the cause remanded. Reversed and remanded.