Smith v. McCandless , 1901 Ill. App. LEXIS 431 ( 1902 )

Mr. Justice Harker

delivered the opinion of the court.

Appellee recovered a judgment against appellant before a' justice of the peace on the 2d day of March, 1901, for $64.44. On the 20th of March he filed an appeal bond with good surety in the sum of $150, for appeal to the County Court. The justice did not indorse an approval of the bond and would not make up and return a transcript to the County Court because of appellant’s refusal to pay costs amounting to $1.10. Afterward, in the County Court, appellant, on the 26th of June, tendered the $1.10 costs and moved for a rule on the justice to send up the transcript and appeal bond. The court overruled the motion, dismissed the appeal and awarded a procedendo. It is contended that the court erred, first, in denying appellant’s motion for a rule on the justice to send up the transcript and the other papers and, second, in dismissing the appeal and awarding a procedendo.

The justice had the right to demand in advance the payment of his fee, for each service performed. He was entitled to twenty-five cents for entering the appeal and thirty-five cents for taking and approving the appeal bond and could lawfully demand the aggregate sum of sixty cents before approving the bond, but he could not lawfully demand the fifty cents allowed for making up the transcript before approving the bond. The County Court should have allowed the rule for a transcript, because appellant had, before asking the rule, tendered all the fees to which the justice was entitled.

It was error to dismiss the appeal and award a procedendo. There was no transcript of the proceedings in the County Court. Without it, the court had no jurisdiction of the subject-matter, and no procedendo could issue. Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley et al., 89 Ill. 477; Schmidt v. Skelly, 10 Ill. App. 564; Marsh v. Dingman, 16 Ill. App. 406.

The judgment will be reversed and the cause remanded.