Fergus v. Lohman , 1888 Ill. App. LEXIS 562 ( 1888 )

Garnett, P. J.

Appellee sued J. B., George H., Scott, Robert andRobertG.Fergusbefore a justice of the peace, judgment being rendered against al the defendants. All except Robert C. appealed to the Circuit Court, filing their bond with the clerk of that court January 21, 1886. Lohman’s appearance was entered in the Circuit Court May 12, 1886, and at the same time the justice’s transcript was filed. No summons was issued to bring in Robert C. Fergus, nor was his appearance ever entered in the Circuit Court. On September 20, 1887; the cause was reached on the call of the calendar, and none of the defendants being in court in person or by attorney, the appeal was dismissed for want of prosecution, and judgments for costs rendered against the appealing defendants. It is noxv the settled rule that an appeal by part of the defendants from a justice’s judgment to the C'rcuit Court, when the appeal is perfected by filing bond xvith the clerk, does not stand for trial until the defendants not appealing have entered their appearance, or been brought into court in the manner described in Sec. 70, Chap. 79, R. S. Steinborn v. Thomas, 8 Ill. App. 515; Hooper et al. v. Smith, 19 Ill. 53; Stewart et al. v. Peters, 33 Ill. 384.

Until Robert C. Fergus was before the court, the plaintiff could not have been forced to trial, and it is a general rule of practice that a party can not force his adversary to act until he himself is in a condition to be forced to proceed. Hooper v. Smith, supra; Lehman v. Freeman, 86 Ill. 208.

Had the four appealing defendants appeared and proceeded to trial in the Circuit Court, without objection, a different question might have been presented. Callaghan v. Meyers, 89 Ill. 566.

The order dismissing the appeal and ordering costs against appellants is erroneous.

Reversed and remanded.