Lucas v. Dennington

• Decision Date: 30 September 1877
• Citation: 86 Ill. 88,1877 WL 9668
• Parties: THOMAS P. LUCASv.JOHN C. DENNINGTON.
• Court: Illinois Supreme Court

86 Ill. 88

1877 WL 9668 (Ill.)

THOMAS P. LUCAS

v.JOHN C. DENNINGTON.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Peoria County; the Hon. JOSEPH W. COCHRAN, Judge, presiding.

Mr. H. W. WELLS, for the appellant.

Messrs. COOPER & BASSETT, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In November, 1873, appellee brought an action of forcible detainer before a justice of the peace of Woodford county, against appellant, and recovered a judgment. An appeal was taken to the county court, and at the June term, 1874, of that court the venue was changed to the county court of Peoria county, and a trial was had therein at the January term, 1875, and plaintiff recovered a judgment. Defendant appealed to the circuit court of that county. At the next November term of that court, the parties being present, plaintiff insisted on an affirmance of the judgment, because defendant had filed no bill of exceptions, and he demanded a trial de novo, but the court dismissed the appeal, and awarded a writ of procedendo to the county court; and defendant appeals.

The only question presented and urged is, whether appellant was entitled to a trial de novo. Under the act of 1872 appeals from the county to the circuit court could only be tried on the record. And it is conceded that all cases coming into the county court after July 1, 1874, the date the act repealing the law of 1872 took effect, must, on appeal to the circuit court, be tried as they were in the county court. But it is insisted that, as this case was pending in the county court before the act of 1874 took effect, it was required to be tried under the act of 1872, when it was appealed to the circuit court.

Section 187 of chapter 37 of the Revised Statutes of 1874 provides that appeals may be taken from all final orders, judgments, and decrees of the county court to the circuit court of their respective counties, except as provided in section 188, which allows appeals and writs of error to this court on judgments for the sale of lands for taxes, and on sales of land by executors, administrators, guardians, and conservators; and that section provides that on appeal to the circuit court the case shall be tried de novo. Section 189 provides that the county court shall proceed to hear and determine all causes depending therein at the time that act should take effect. And it provides for appeals and writs of error from such judgments, orders, and decrees, without specifying in terms the court to or from which they may be taken, or the manner in which they shall be perfected.

There can be no question that all suits coming into the county court, and appealed to the circuit court since the act of 1874 went into effect, shall be tried de novo on such appeal. But it is contended that section 189, giving writs of error and appeals in cases then pending, was designed to continue the practice of the act of 1872 on appeals to the circuit court. Section 187 had given the appeal to the circuit court, and section 188 a writ of error and appeal to this court in certain cases; and we think it is clear that section 189 was designed to apply the provisions of sections 187 and 188 to cases then pending in the county court, and place them on the same footing, both as to trial and writ of error or appeal, as causes arising under the act then being enacted.

As the appeal from judgments of the county court for the sale of land had been, before the adoption of section 188, to the circuit...