White v. Frye , 7 Ill. 65 ( 1845 )

The Opinion of the Court was delivered by

Koerner, J.^*

On the 9th day of January, 1844, Frye, the defendant in error recovered a judgment before J. K. Cooper, a justice of the peace in Peoria county, against White, the plaintiff in error, for $77-97. Twenty days having elapsed since the rendition of the judgment, White removed the cause into the Circuit Court of Peoria county by writ of certiorari. At the May term following, the case was dismissed on motion of defendant in error, for insufficiency of the petition upon which the certiorari had been granted.

The decision of the Court in allowing this motion and dismissing the appeal, is the only error assigned.

. The petition alleges, that the appellant has merits, and that the judgment of the Court below was not the result of negligence on his part. It also sets forth the particular circumstances, which, in the appellant’s opinion, placed it beyond his power to take an appeal in the ordinary way. These circumstances, however, in the opinion of the Court, are not sufficient to warrant such a conclusion, and the petition is therefore considered to be defective in this respect.

On this last point, the petition in substance alleges, that the plaintiff in error was a poor man; that in consequence it took him several days after the rendition of the judgment to procure security on the appeal bond; that fourteen or fifteen days after the judgment was rendered, he called at the office of the justice in the town of Peoria for the purpose of procuring the proper papers, and perfecting his appeal; that the justice was then absent from his office, and that the petitioner, after diligent inquiry, was unable to learn where said justice was; that on the last day, when he could have taken the appeal, he made another call at said justice’s office, and again failed to find him, making the same inquiry as the first time.

There is no doubt that under certain circumstances, the attention shown in this particular case, might be held to have been sufficient. If, for instance, the petitioner could have shown, that he resided far from town, and that he had no means of readily communicating with the justice, by letter or otherwise, or, that by some pressing business, he was prevented from repeating his calls.

No such additional facts, however, have been presented in the petition, and the Court cannot indulge in presumptions favorable to the petitioner, but will rather presume from their absence,- that he lived within the justice’s precinct, and that he had the usual means of communicating with him. He was not compelled to perfect his appeal before the justice, but could have entered his appeal with the clerk, and all he had to do was to procure simply a copy of the judgment from the justice; a matter, which under ordinary circumstances, is certainly not very difficult, and requires not even personal attendance on the justice. All the facts set forth in the petition might have been true to the letter, and yet the applicant might have been guilty of great carelessness and neglect.

It was insisted in the argument, that the Circuit Court had no power to decide on the sufficiency of the petition, inasmuch as the authority to grant writs of certiorari was delegated to certain officers designated by the law, and that their decision by allowing the writ, was conclusive. We deem this proposition not maintainable. The granting of these writs, is more of a ministerial than judicial character, and is besides an ex parte proceeding, giving the party which is to be affected by it no opportunity to resist it. It would be singular indeed, if the Circuit Court had no revisory power over such a proceeding. It might as well be argued, that no objection could be taken to an appeal bond, because the justice of the peace or the clerk of the Circuit Court had approved it. Principle, practice, and the former decisions of this Court negative this proposition.

We can see no error in the record. Judgment below affirmed with costs.

Judgment affirmed.

* Purple, J., having been of counsel in the Court below, did not sit in this case. Wilson, C. J., did not hear the argument, &c.