Meserve v. Delaney

• Decision Date: 17 November 1884
• Citation: 112 Ill. 353,1884 WL 10015
• Parties: LOUISA S. MESERVEv.HENRY DELANEY.
• Court: Illinois Supreme Court

112 Ill. 353

1884 WL 10015 (Ill.)

LOUISA S. MESERVE

v.HENRY DELANEY.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

APPEAL from the Appellate Court for the First District;--heard in that court on writ of error to the Circuit Court of Cook county; the Hon. T. A. MORAN, Judge, presiding.

Mr. H. O. MCDAID, for the appellant.

Mr. JOHN R. PARKER, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This is an appeal from the Appellate Court for the First District. The amount involved is the trifling sum of $8.50, but the appeal was granted by that court on a certificate that the case involves a question of such importance, on account of principal and collateral interests, as that it should be passed upon by this court. The question is, whether the circuit court erred in entering this order: “On motion of the appellee, by his attorney, the said appellant is hereby ruled to pay to said appellee $8.50 appeal costs, within five days from this date, or in default thereof, suit to be dismissed out of this court.”

It appears that more than six years before this order was entered, appellant, Louisa S. Meserve, prayed an appeal from an order of the county court allowing a claim against an estate of which she was executrix. She executed an appeal bond, which was approved by that court. She, however, took no further steps to prosecute the appeal. Appellee, Delaney, procured a transcript of the judgment appealed from, and paid the clerk of the court $2.50,--his fees for making the transcript. He filed it in the circuit court of Cook county, and paid the docket fee of $6, and moved for and obtained the order, a copy of which being served on appellant, and she failing to answer the rule, it was made absolute, and the appeal dismissed.

Numerous objections are urged against the dismissal of this appeal. It is claimed that the court has no power to enter and enforce such a rule; that the appeal bond covers this and all other costs that appellee may recover against appellant, and the court exceeded its power in entering and enforcing the rule. The uniform practice in the circuit courts in the State, it is believed, has been, from the organization of our judicial system, to dismiss appeals for want of prosecution,--nor are we aware that the power has ever before been questioned. In this case the appeal had been perfected more than six years, and yet appellant had taken no further steps for its prosecution with effect. This undeniably put appellant in default, and authorized the dismissal of the appeal for that reason.

The power of the court to make an order like that in this case, is fully recognized in the cases of Edwards v. Duling, 36 Ill. 351, and Garrity v. Bash, 84 Id. 73. The power to enter and enforce such an order is established by these cases, and further discussion of that question is unnecessary. After repeated decisions of the same question in the same way, it must be regarded as settled, and there is nothing beneficial to be obtained by its further discussion. The business of the country, the security of rights, and the well being of society, depend largely upon the stability of the laws as interpreted by the courts, and the speedy administration of justice equally demands that the rules of practice shall be uniform, and free from vacillation and constant change. There can be no benefit arising from constantly mooting questions that should be, and the best interests of society require to be, regarded as settled. We therefore decline to go into further discussion of that question, especially as no new arguments have been urged by appellant.

In the case of Edwards v. Duling, the practice in such a case as this is clearly stated. It is there held that in case appellant fails or refuses to take the necessary steps to have his case docketed, the appellee may; and on doing so, he may have a rule on appellant to refund the docket fee, and failing to do so, the appeal will be dismissed, and that notice of such rule should be served on appellant. Here it is expressly held that a rule may be entered against appellant to show cause why the docket fee advanced by appellee should not be refunded or the appeal dismissed when appellant is served with the rule, and on failing to comply with the rule the appeal should be dismissed. In this case appellant had failed to take the necessary steps to have her appeal placed on the docket, for more than six years, and had manifestly failed to prosecute the appeal with effect, and a rule could have been entered to show cause why the appeal should not be dismissed for want of prosecution. But appellee chose to have this rule entered in preference to the other. Here, the rule was entered after appellee had paid the docket fee and the costs of the transcript, the appeal docketed, and the rule served on appellant. The case comes within the practice indicated in Edwards v. Duling, supra.

In the case of Thayer v. Peck, 93 Ill. 357, the appeal from the justice of the peace had been perfected by filing bond, and its approval, but appellant failed to have the papers and...