Burke v. Dunning

Mr. Justice Windes delivebed the opinion oe the Coubt. Defendant in error sued plaintiff in error before a justice, where, on a jury trial, a verdict was rendered finding the issues for defendant, on which verdict the justice gave judgment in favor of defendant and against the plaintiff for costs. The plaintiff appealed to the Circuit. Court, where, the defendant having entered his appearance on July 17, 1894, the case was called for trial on June 23, 1896, and a trial had, resulting in a judgment for plaintiff in the sum of $200 and costs. At the July, 1896, term of said Circuit Court, defendant (plaintiff in error) entered a motion to set aside said last mentioned judgment, which motion was continued to the September, 1896, term, and again on May 5, 1897, entered another motion to vacate said judgment, which was overruled.' It does not appear from the record that defendant was present either in person or by attorney at the rendition of the judgment of June 23, 1896, but he took no exception to the action of the court in overruling his motion to vaca té the judgment, made May 5, 1897. Ho exception being taken, no complaint can be made of the court’s action on this motion. The abstract fails to show the judgment of the court, and contains no assignment. of errors, which is sufficient to justify this court in affirming the judgment of the Circuit Court. Gibler v. City of Mattoon, 167 Ill. 22. The record, however, is short, and we have thought proper to examine it. It shows the judgment of the court, as well as an assignment of errors, which is that it was error to render said judgment and overrule the motion of plaintiff in error to vacate the same. It is claimed that the. judgment before the justice, being for posts only, was not a final judgment, from which an appeal would lie to the Circuit Court, and therefore that the Circuit Court had no jurisdiction. In Zimmerman v. Zimmerman, 15 Ill. 84, it was held that a judgment by a justice against a plaintiff for costs, without stating in Avhose favor, Avas a judgment in bar—a final judgment. The filing of the bond, transcript and appearance of plaintiff in error in the Circuit Court, gave that court j urisdiction of the parties. It had jurisdiction of the subject-matter, the suit being for failure to pay a certain demand not exceeding $200. Buettner v. Norton, etc., Co., 90 Ill. 415. In Titley v. Kaehler, 9 Brad. 541, Judge Bailey said, speaking of the proceeding on appeal from a justice: “ The appeal is merely a mode by which the parties and the matters in controversy between them are brought before the court; but the appeal being once perfected and the parties in court, their relations to the court and to each other are identical with those of parties to original actions.” The same judge, in Reynolds v. DeGeer, 13 Brad. 113, in speaking of the effect of an appeal, said: “ The whole controversy Avas opened and the case was thenceforth in the same plight as though no trial had been had or judgment rendered upon any of the issues submitted to the justice.” That being so, plaintiff in error is in no position to complain, even if no judgment Avhatever had been rendered by the justice. In Quinn v. People, 146 Ill. 281, it was said by the Supreme Court, speaking of a defendant entering into a recognizance, “ that a party can give jurisdiction of his person to a court having jurisdiction of the subject-matter, by consent, in cases civil or criminal, is so clear that it admits of no argument.” The judgment is affirmed.