Peadro v. People , 57 Ill. App. 45 ( 1895 )

Mr. Presiding Justice Wall

delivered the opinion of the Court.

A judgment was rendered by a justice of the peace against the plaintiff in error, Peadro, and four other parties, from which judgment said plaintiff in error took an appeal to the County Court, by filing his bond with the justice, whereupon the justice filed the- papers in the cause with a transcript of the proceedings, in the office of the clerk of the County Court.

The clerk issued a summons for the non-appealing defendants, returnable to the next term of the County Court, which was served upon all of said parties except one, as to whom there was a return of not found. He did not enter his appearance. At the return term, on motion of the plaintiffs, the defendants not appearing, or any one for them, the appeal ivas dismissed for want of prosecution, and judgment was rendered against all the defendants for costs.

This was error. The summons not having been served on all the parties, the cause was not in a condition to be tried. Neither the plaintiff in error, nor his co-defendants, were bound to take any steps at that term, and the cause should have been continued. R. S., Ch. 79, Sec. 70; Stewart v. Peters, 33 Ill. 384; Walter v. Burman, 59 Ill. 186; Steinborn v. Thomas, 8 Brad. 515; Humphreys v. Rodgers, 9 Ib. 281.

The defendants in error do not combat this objection, but have urged merely that plaintiff in error, Peadro, could not properly prosecute the writ of error in his own name alone, and they moved to dismiss on that' ground. A cross-motion for leave to amend, by joining the other parties as plaintiffs in error, was interposed, which was allowed, and the motion to dismiss was then denied. The point thus made by defendants in error having been obviated by amendment of the writ of error, nothing remains to be done but to reverse the judgment for the error in dismissing the appeal, and to remand the cause for further proceedings.