Roberts v. Fahs
| Decision Date | 30 April 1863 |
| Citation | 1863 WL 3201,32 Ill. 474 |
| Parties | ROBERTS et al., Trustees, etc.,v.FAHS et al. |
| Court | Illinois Supreme Court |
ERROR to Circuit Court of Wabash County.
Motion by defendant in error for a rule upon plaintiff in error to show cause why the writ sued out by him should not be dismissed, based upon an affidavit filed by defendant in error after the expiration of a rule to join in error, but before the request of a default for nonjoinder, alleging the nonresidence of plaintiff in error at the time of suing out the writ of error, and his failure to file a bond for costs.
The statute is imperative that if a nonresident plaintiff shall institute his suit without first having given a bond for costs, “the court, on motion, shall dismiss the same.” Scates' Comp., 244. A writ of error is considered as a new action, and the statute applies to all suits instituted in the circuit or supreme court by nonresident plaintiffs. Ripley v. Morris, 2 Gilm., 382; Hickman v. Haines, 5 Id., 20.
The motion is in apt time. It is made before the time has passed for pleading in abatement, which is sufficient. Trustees v. Walters, 12 Ill., 154; Randolph v. Emerick, 13 Ill., 346.
The rule will be entered. Rule nisi.
No cause being shown against said rule, it was afterwards made absolute.
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Bealmear v. Beeson
... ... Roberts v. Fahs, 32 Ill. 474; Garrett & Bibb v. Terry, 33 Ala. 514; Willoughby v. George, 4 Colo. 22. The filing of notice of appeal is not the commencement ... ...
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Petrauskas v. Kipnis
...statutes applied to proceedings on appeal because a writ of error was considered to be the commencement of a new action. (Roberts v. Fahs (1863), 32 Ill. 474; Hickman v. Haines (1848), 10 Ill. 20; Ripley v. Morris (1845), 7 Ill. 381.) This rule was changed, so that today an appeal is consid......