Joliet & Chicago Railroad v. Barrows , 24 Ill. 562 ( 1860 )

Walker, J.

The petition for a writ of certiorari in this case alleges, that the application to the justice of the peace, for the appointment of commissioners, and the assessment of damages for the right of way, were without the knowledge of the petitioner. That these facts did not come to his knowledge until long after the expiration of twenty days from the assessment of the damages. While this petition may not be drawn with per-feet accuracy and formal precision, it clearly shows that the appellee had no notice of the proceeding, or any opportunity to be heard on the assessment of the damages, or to perfect an appeal from the finding of the commissioners. The statute gives an appeal in this proceeding in the same manner as from judgments of justices of the peace in ordinary cases. And we think, that this petition discloses such facts as render it substantially sufficient, and the court below committed no error in overruling the motion to quash the petition and dismiss the certiorari.

By whatever name this proceeding may be called, it is only another mode of perfecting an appeal from the judgment of a justice of the peace, when the party has been prevented from doing so in the usual time, and ordinary mode. When it is perfected in this mode, it is in all respects governed by the same rules in the trial of the case in the appellate court as if it was an ordinary appeal. By it the judgment from which it is prosecuted is vacated, and the cause stands for trial de novo, as other appeals from the judgment of justices of the peace. This being the case, the railroad company had the right to pursue the same course with the cause in the Circuit Court, which they would, had it been an ordinary appeal. And it has been held that the plaintiff after the appeal is perfected and the case is pending in the Circuit Court, has the right to dismiss his suit, as though it had originated in that court. Shaffer v. Currier, 13 Ill. R. 667. This proceeding having been instituted by the company, after it was legally pending in the Circuit Court, it was under their control, and they had the right either to dismiss it, or to proceed to trial. They asked leave to dismiss the suit and the motion was overruled by the court. This was error, as they might exercise that right at any time before the jury retired to consider of their verdict. But they by doing so would leave themselves in the same situation as though the proceedings had never been instituted. The steps already taken, would form no protection to acts of the company. The judgment of the court below must be reversed, and the motion of the appellants to dismiss the proceeding is allowed, and it is dismissed. The appellee will pay the costs of this court, and the appellants the costs of the court below.

Judgment reversed.