Chicago Stamping Co. v. Danly

Hr. Presiding J ustioe Horton

delivered the opinion of the court.

This is an appeal from an order by the Circuit Court quashing a writ of certiorari and dismissing the petition upon which such writ was issued. To authorize or sustain such a writ to remove a cause from a justice of the peace, the petition therefor must set forth and show, first, that the judgment by the justice was not the result of negligence on the part of the petitioner; second, that the judgment in his opinion is unjust and erroneous, showing wherein' the injustice and error consists; third, that it was not in the power of the petitioner to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing.

Whether the amended petition of appellant was sufficient to meet the requirements of the statute as to the first and second items, it is not necessary here to inquire. It must not, however, be inferred from this that we are of opinion that the petition is sufficient as to those items. No brief or argument is filed by appellee, and the argument of appellant is mainly as to whether the amended petition is sufficient to meet the requirements of the statute as to the third item.

The petition states that after judgment had been entered against appellant in the justice of the peace court, the parties made an agreement, by the provisions of which they settled all the matters involved in this suit; that in consideration of said agreement, appellant “ then and there agreed not to prosecute its said appeal,” and that it “ would have appealed said cause, as was its intention, had it not been for the said agreement.”

How can it be said that it was not in the power of appellant to take an appeal in the ordinary way, when the petition shows affirmatively that it was in its power, and that it intended so to do, but that it did not appeal because it had agreed that it would hot ? It would be a work of supererogation to investigate and cite authorities in support of so clear a proposition. The authorities cited by appellant do not support the contention of counsel. The right of a writ of certiorari is controlled by the statute, and the petition is to be construed most strongly against the petitioner. Whatever rights or remedies appellant may have, • if any, for failure to perform the agreement set out in said petition, the right to a writ of certiorari is not one'Jof them.

The judgment of the Circuit Court is affirmed.