Opinion
Gen. No. 35,256.
Opinion filed May 4, 1932.
1. JUSTICES OF THE PEACE — when cause to be tried de novo on appeal. Upon the perfecting of an appeal from the judgment of a justice of the peace in the superior court of Cook county, it becomes necessary to try the cause de novo.
2. JUSTICES OF THE PEACE — effect of dismissal of cause on appeal for want of prosecution upon obligation on bond. Where, upon appeal from a judgment of a justice of the peace to the superior court of Cook county, the cause, when called for trial, is dismissed for want of prosecution, there is no judgment against the defendant appellant and, necessarily, the obligation on the appeal bond ceased, so that no action can be maintained upon it by the plaintiff against the surety.
Appeal by defendant from the Municipal Court of Chicago; the Hon. JOHN A. SBARBARO, Judge, presiding. Heard in the third division of this court for the first district at the April term, 1931. Reversed and judgment here for defendant. Opinion filed May 4, 1932.
ABRAHAM LEPINE, for appellant; R. C. D'AUTREMONT, of counsel.
No appearance for appellee.
Plaintiff secured a judgment before a justice of the peace of Cook county against Marion R. Griffith, from which judgment an appeal was taken to the superior court where it was recorded as No. 476702. June 26, 1929, the cause was called for trial in the superior court and the following order entered:
"This cause being called for trial and neither party appearing to prosecute this suit in their behalf on motion of Court it is ordered that this cause be and the same is hereby dismissed without costs for want of prosecution."
December 11, 1930, plaintiff Nathan Sloan, doing business as Sloan Schwartz, brought his action in the municipal court of Chicago against the defendant, Continental Casualty Company, on the bond filed in the superior court of Cook county on appeal from the judgment obtained against Marion R. Griffith. Defendants contend that the cause on the appeal from the justice of the peace having been dismissed for want of prosecution, the plaintiff is precluded from suing on the bond. It is also insisted that the record discloses that the action before the justice of the peace was in the name of Sloan Schwartz, whereas the action on the bond in the municipal court is brought in the name of Nathan Sloan, doing business as Sloan Schwartz.
We are of the opinion that the first point is well taken. Upon the perfecting of the appeal from the judgment of the justice of the peace in the superior court, it became necessary to try the cause de novo. As was said by this court in Gregory v. Hough, 171 Ill. App. 334: ". . . We do not think that when a case is appealed from a justice of the peace to the Circuit Court it can be said that the judgment of the justice of the peace is vacated upon the perfecting of the appeal, because if the appeal for any reason is dismissed and a procedendo awarded, the efficacy of the judgment in the justice court is immediately re-established."
If the order in the cause of the superior court had been "appeal dismissed," the judgment of the justice of the peace would have been revitalized and the bond liable for failure to prosecute the appeal with effect. The judgment of the superior court, however, having been a dismissal for want of prosecution, there was no judgment against the defendant Marion R. Griffith and, necessarily, the obligation on the bond ceased. Shaffer v. Currier, 13 Ill. 667.
In view of our holding on this proposition, it is not necessary to consider the other contention raised by the defendant. The question being one of law and not of fact, for the reasons stated in this opinion, the judgment of the municipal court is reversed and judgment is entered here for the defendant.
Judgment reversed and judgment here for defendant.
HEBEL, P. J., and FRIEND, J., concur.