Wayne v. Stern , 75 Ill. 313 ( 1874 )

Mr. Justice McAllister

delivered the opinion of the Court:

Appellee brought replevin against appellants, in a justice’s court in. Chicago; recovered a judgment in trover; and they appealed to the Superior Court. It appeared, upon the face of the justice’s transcript, that the action was replevin and recovery in trover, and that appellants were non-residents of the State. The appeal was perfected about the middle of November, 1872, and, on the 4th day of the next succeeding December, the court, as appears by the bill of exceptions, dismissed the appeal for the mere want of an affidavit of merits under the provisions of a statute passed in 1857, applicable only to Cook county, as follows: “ All suits pending in the said Circuit Court of Cook county, and Cook county Court of Common Pleas, by appeal from any inferior court, may be dismissed by said courts, unless the appellant shall file an affidavit of merits before the expiration of the rule to plead, as m other eases.” All the other cases in which an affidavit of merits was required in said courts, were in actions ex contraotu. There was never any statute, to our knowledge, requiring an affidavit of merits in the courts in question, when the action was trespass, replevin, or trover. But, in July, 1872, the general Practice Act went into force. The 36th section of that act, providing for affidavits of merits, requires it only in actions upon contract, and where the defendant is a resident of the county where the suit is brought. Nothing could be clearer than that by this General Practice Act, and the provisions of section 29 of article 6 of the constitution, requiring uniformity of practice in all courts of the same class or grade, so far as regulated by law, the special statutes regulating the practice of the courts of Cook county were abrogated. O'Conner v. Leddy, 64 Ill. 299. There was, then, no law, common or statutory, requiring appellants to file an affidavit of merits in the Superior Court, as a condition precedent to the right to trial in that court, upon their appeal.

To dismiss the appeal for want of such affidavit was palpable error, for which the judgment must be reversed, and the cause remanded.

Judgment reversed.