Cumming v. Sisson

Mr. Justice Baker delivered the opinion of the court. Plaintiff in error contends that the judgment should be reversed for the following reasons: First, the Circuit Court was without jurisdiction of said cause, for the reason that it did not affirmatively appear from the papers on file in that court that the justice of the peace had jurisdiction thereof; and second, because appellant in the Circuit Court caused summons to issue to the county of Cook when in fact th® appellee resided in Livingston county and the place of residence of said appellee was well known to the appellant. It appears from the affidavits filed in support of the motion that plaintiff has, since the suit was begun, resided in Livingston county, and that this was known to defendant. Plaintiff brought this suit before a justice of the peace of Cook county. The appeal summons and alias were issued to the sheriff of that county. The defendant had the right to appeal by filing his bond with the justice and when an appeal is thus taken, no summons issues for the appellee. He also had the right to appeal, as he did in this case, by filing his bond in the office óf the clerk of the Circuit Court. The statute provides that when an appeal is so taken, “the clerk shall issue a supersedeas * * * and he shall issue a summons to the appellee,*” etc. R. S., chap. 79, see. 115. The statute further provides that when the appeal is taken by filing the bond with the clerk of the Appellate Court and summons and alias have been issued for the appellee and returned, “not found; it shall be lawful for the Appellate Court to proceed and try the appeal as if the appellee had been duly served with process.” Id. sec. 177. The statute makes no provision for issuing an appeal summons to a foreign county. All that was required of the appellant was to file his appeal bond with the clerk. Upon the filing of such bond, it became the duty of the clerk to issue an appeal summons. The plaintiff brought his suit before a justice of the peace of Cook county, and we think that the appeal summons and alias were properly issued to the sheriff of that county, and that the Circuit Court acquired jurisdiction of the appellee by the returns of “not found” of such summons and alias. The affidavit, writ of replevin and bond became a part of the record of the cause in the Circuit Court when filed therein, although not filed until a term subsequent to that at which the judgment was entered. Leiferman v. Osten, 167 Ill. 93. There was in this case before the justice an affidavit, writ of replevin and bond, and he had jurisdiction of the subject-matter and of the plaintiff. The filing of the appeal bond by the defendant gave the Circuit Court jurisdiction of the defendant, although he had not been served before the justice. The filing of the appeal bond and transcript gave the Circuit Court jurisdiction of the subject-matter. The issuing of the appeal summons and alias and the returns of “not found’ ’ gave that court jurisdiction of the plaintiff. The failure of the justice to send up, with the transcript, the affidavit, writ and bond did not affect the jurisdiction of the Circuit Court, and the proceeding to trial in that court, without such affidavit, writ and bond being on file, was but an irregularity which was waived by the plaintiff by his failure to object to proceeding to trial without them. Leiferman v. Osten, supra. In that case the distinction is pointed out between eases where the record wholly fails to show that any complaint or affidavit was filed before the justice in a case where such complaint or affidavit is necessary to give him jurisdiction of the subject-matter and cases where the record shows that all the papers necessary to give the justice jurisdiction were before him, but were not transmitted to the Appellate Court until after the trial of the appeal in that court. We find in the record no reversible error, and the judgment of the Circuit Court will be affirmed. Affirmed.