Goode v. Illinois Trust & Savings Bank

Mr. Presiding Justice Ball delivered the opinion of the court. Appellant contends that it was error for the Circuit Court to hear and to dispose of the cause in the absence of Austin, one of the defendants in the justice court. This contention is based upon the provisions of section 70 of the Justice of the Peace Act of 1872. This section is omitted from the revision of that Act in 1895, which is entitled “An act to revise the law in relation to justices of the peace and constables.” The revision in 176 sections purports to cover the entire subject-matter contained in its title. By article ten of that act, full provision is made for appeals. It is not necessary in this case for us to decide that said section 70 is now the law of this State,—a position we are unwilling to take,—for the reason that appellant by his counsel entered his general appearance in this cause in the Circuit Court. When the case was called for trial he joined in a stipulation by which the matter in dispute was submitted to the court, without a jury, for determination; and also entered into a stipulation as to the facts; and then took part in the trial. At no time in the Circuit Court did appellant raise the question of jurisdiction growing out of the fact that Austin was not then in court. >' The Circuit Court had jurisdiction of the subject-matter of the litigation. It obtained jurisdiction of the person of appellant by his voluntary general appearance. He thus conferred upon that court the right to proceed to hear and to determine the controversy in so far as his rights were concerned. Had he desired to raise the question of jurisdiction, he should not have appeared, or should have limited his appearance to the objection against the jurisdiction of the court. It is too late to raise that question for the first time on appeal. Herrington v. McCollum, 73 Ill., 479; Brownmark v. Livingston, 100 Ill. App. 474; Anderson v. Moore, 145 Ill. 61. The second contention of appellant is that the verdict is contrary to the evidence. We do not so read the statement of facts. Appellant’s contract was made with Austin, the tenant, and not with Mrs. Hill, the owner of the building. It is true, she agreed with Austin that he might make such repairs as he saw fit and she would allow him two or three months’ rent therefor, but this agreement did not make Austin her agent to bind her to pay to Goode or to any other third person the cost of any repairs ordered solely by Austin. The mere fact that Mrs. Hill saw Goode at work on these repairs did not render her liable therefor. There is nothing to show that Mr. Shirra had any power to bind Mrs. Hill, or that she ever knew of his promise or adopted it. Mor does it appear that such repairs were of any permanent benefit to the premises. The judgment of the Circuit Court is affirmed. Affirmed.