William W Gallimore, appellant v Wiliam T Dazey et al appellees

Source: Reports Of Cases
Written: 1850

William W. Gallimore, appellant, v. William T. Dazey et al., appellees.

Appeal from Adams.

When a petition shows a case clearly within the spirit and letter of the
statute, a party is permitted to avail himself of the privilege of a rehearing
of a decision by a justice of the peace, at any time within six months, by the
aid of a writ of certiorari, and the filing of a petition with an order
allowing the writ endorsed thereon, and an appeal bond approved, will give the
court jurisdiction, and the case is pending from that time in the Circuit
Court, without the emanation of the writ. (a)

The trial is to be de novo as in cases of appeal, and no formal return is
required to the writ, and if the writ is served and returned, and its mandate
is not complied with, an attachment may be issued against the justice.

Where the papers and a transcript of the proceedings are filed, the issuing of
a certiorari is wholly unnecessary.

There is no occasion for a bill of exceptions to the decision of a court
dismissing a suit, upon a motion based upon facts appearing in the record.

This was an action commenced by the appellees against the appellant in Adams
county, before a justice of the peace. The judgment upon the motion to quash,
was rendered by Minshall, Judge, at May term of the Adams Circuit Court, 1849.
Gallimore prayed this appeal. The facts of the case are stated in the opinion
of the court.

Warren & Edmunds, for appellant.

Williams & Lawrence, for appellees.

Treat, C. J. Dazey and Shepherd brought an action against Gallimore, before a
justice of the peace. The constable made return that he was satisfied the
defendant evaded service of the summons, and he "therefore served the same on
the said Gallimore by leaving a written copy at his place of residence, with
old Mrs. Gallimore." On the sixteenth of August, 1847, the justice rendered a
judgment by default against the defendant for $46. On the tenth of February,
1848, the defendant obtained an order for a certiorari, to remove the cause
into the Circuit Court, and filed a bond as in the case of an appeal. He
swore, in his petition for the certiorari, that he was absent from the state
at the time of the commencement of the suit before the justice, and continued
absent until more than twenty days had elapsed after the judgment was
recovered, and that, in the meantime, he had no knowledge or information of
the pendency of the suit, or of the rendition of the judgment, and he could
not, therefore, have taken an appeal in the ordinary way; and that he was not
indebted to the plaintiff on any account whatever. A supersedeas was issued,
and served on the justice. No writ of certiorari was ever issued. A certified
transcript of the proceedings before the justice was filed in the Circuit
Court on the nineteenth of May, 1848. In May, 1849, the surviving plaintiff
appeared and entered a motion to dismiss the proceeding, which the court
sustained. That decision is now assigned for error.

The statute allows a party, under certain circumstances, to remove a cause
from a justice of the peace to the Circuit Court, by certiorari, within six
months after the rendition of the judgment.

He is required to set forth and show, on oath, that the judgment was not the
result of negligence on his part; that the same, in his opinion is unjust and
erroneous, specifying wherein the injustice and error consist; and that it was
not in his power to take an appeal in the ordinary way, stating the particular
circumstances that prevented him from so appealing. The officer allowing the
certiorari, is required to endorse an order to that effect on the petition;
and on the filing of the same in the Circuit Court, together with a bond
conditioned as in the case of an appeal, a writ of certiorari is to be issued.
The writ commands the justice to certify into the Circuit Court a transcript
of the proceeding had before him; and upon the return of the writ, the cause
is to be proceeded with as in cases of appeal: R. S., ch. 59, secs. 72 to 74.

The Circuit Court erred in sustaining the motion to dismiss.

The petition showed a case clearly within the letter and spirit of the
statute. The defendant was absent from the state when the action was commenced
before the justice, and did not return until the time allowed for an appeal
had expired. During his absence, he had no actual notice of the pendency of
the suit, or of the existence of the judgment, and he was not the debtor of
the plaintiffs. If this was true, and it must, be so considered for the
purposes of this case, he had a clear right to the remedy by certiorari. The
judgment was not the result of negligence; it was wholly unjust; and it was
out of his power to have it reviewed in the Circuit Court in the usual mode.
He had a defense on the merits, and no opportunity to interpose it. The
statute was intended to provide for just such cases. It seems to be the design
of the statute that every party, against whom a judgment has been rendered by
a justice of the peace, may have the case reheard in the Circuit Court. It
accordingly allows an appeal in every case, except on a judgment confessed,
provided the same is taken within twenty days from the date of the judgment.
And where a party can show that injustice has been done him, not attributable
to his own laches, and that he could not, by the use of extraordinary
diligence, perfect an appeal within the twenty days, he is permitted to avail
himself of the privilege of a rehearing at any time within six months.
It is insisted, however, that the issuing of a writ of certiorari, within the
six months, is necessary to invest the Circuit Court with jurisdiction of the
case. We think otherwise. It is the filing of the petition, with an order
allowing a certiorari endorsed thereon, and an appeal bond approved by the
clerk, which gives the court jurisdiction. The case is from that time pending
in the Circuit Court. The statute permits a party to take an appeal, by
entering into an appeal bond before the justice, and the latter is thereupon
required to file the bond and the papers of the case in the Circuit Court,
within twenty days thereafter. Under this provision, it was decided, in the
case of Little v. Smith, 4 Scam., 400, that the case was properly pending in
the Circuit Court, from the time of the approval of the bond by the justice,
although the papers were not sent up within the time required by law; that it
was the giving of the bond by the party, and not the filing of the papers by
the justice, which perfected the appeal, and conferred the jurisdiction. It
was held, in the case of Owens v. McKethe, 5 Gilman, 79, that an appeal to
this court was perfected by the filing of the appeal bond with the clerk of
the Circuit Court. Those cases are not different in principle from the one
under consideration. The only office of the writ of certiorari is to bring up
the papers of the case, and a transcript of the proceedings had before the
justice, to be used on the trial in the Circuit Court. The trial is to be de
novo, as in cases of appeals; and not upon the return of the inferior
tribunal, as in common law cases of certiorari. The only command of the writ
to the justice, is to certify and transmit the papers and proceedings of the
case. He is not required to make any formal return to the writ. His only duty
is to send up the papers and proceedings. The writ is directed to the sheriff,
and is served and returned by him. If its mandate is not complied with, the
sheriff's return of service is a sufficient foundation for an attachment
against the justice. Where the papers and a transcript of the proceedings are
filed, the issuing of a certiorari is wholly unnecessary. The object of the
statute is then fully answered, and the law will not require the performance
of an unnecessary act. It is like the case of a writ of error from this court,
which is never sent out, where the plaintiff in error files a transcript of
the record in the first instance; and like the case of the suggestion of a
diminution of the record in a case before this court, where a certiorari is
not sent down to the keeper of the record, if either party will supply the
defect, by filing a complete record. All that the appellee can require is,
that he shall not be delayed in the trial of the case, by the neglect of the
appellant to have a certiorari issued. If, when he appears, the papers of the
case are in court, no matter how they came there, he has no cause for
complaint. In this case, the necessary papers were on file long before the
plaintiff entered the motion to dismiss, or even appeared in the case.

There was no occasion for a bill of exceptions to the decision of the court,
dismissing the suit. The motion was based on facts appearing in the record.

The judgment is reversed, with costs, and the cause remanded for further
proceedings.

Judgment reversed.

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(a) Stout v. Slattery, post 163.
See R. S. 1874, ch. 70, secs. 75-80, inclusive.
As to what the petition for the writ must contain, see Russell v. Pickering 17
Ill., 31; Clifford v. Waldrap, 23 Ill., 336; Harrison v. Chipp, 25 Ill., 570;
Davis v. Randall, 26 Ill., 243; First Nat. Bk. of Chicago v. Beresford, 78
Ill., 391.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.
1881.

 

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