Seward v. Wilson
| Decision Date | 31 December 1835 |
| Citation | 1835 WL 2169,2 Ill. 192,1 Scam. 192 |
| Parties | SAMUEL SEWARD, for the use of George W. Chapman, plaintiff in error,v.ABIJAH WILSON, defendant in error. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS cause was decided in the Court below, at the April term, 1835, by the Hon. Richard M. Young.
A. WILLIAMS, for the plaintiff in error.
O. H. BROWNING, for the defendant in error.
This was an action instituted originally before a justice of the peace. From the bill of exceptions it appears that the plaintiff was at the time of the commencement of the suit a non-resident, but that the person for whose use it was instituted was a resident. It also appears that a motion was made before the justice to dismiss the cause for the reason of the non-residence of the plaintiff. The Circuit Court, on the cause being brought to that Court, dismissed the cause because of the non-residence of the plaintiff at the time of its commencement before the justice, and entered a judgment for defendant for the costs. To reverse this judgment, this writ of error is prosecuted, and the only question made here, is whether the Circuit Court decided erroneously in dismissing the cause.
Strictly the order dismissing the cause is not conformable to the judgment which should have been entered on the facts as they appear; and it is presumed to be a clerical error in using the word “dismiss,” when it should have directed the judgment of the justice to have been reversed. The effect may be the same, however, as no procedendo was awarded, and the defendant recovered his costs in both Courts. The judgment of the Circuit Court is substantially correct.
Nothing is more certain from the act regulating the proceedings before justices of the peace in civil actions, than that a non-resident plaintiff shall not institute a suit until he shall have given a bond for costs. It is a disability imposed on him, and as effectually precludes his right to sue until the bond be given, as in the case of an alien enemy. The statute in relation to costs in like cases in the Circuit Court, is different, because it speaks of persons for whose use suits may be instituted, but even there it may be justly doubted whether under that act, the person for whose use the suit is instituted, filing a bond would be a compliance with that act. It only declares he shall be liable for costs, but neither by that law, nor the practice of the Court, could a...
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Lee v. Waller
...that the filing of a bond for costs is a condition precedent, and if not complied with, suit can not be instituted, cited Seward v. Wilson, 1 Scam. 192. The right to insist upon a bond for costs in case of a nonresident plaintiff is not waived by pleading to the action: Kimbark v. Blundin, ......
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Caton v. Harmon
...Sec. 1. (Gale's Stat.; R. L. 165.) The judgment of the Municipal Court is affirmed with costs. Judgment affirmed. Note. See Seward et al. v. Wilson, 2 Ill. 192; Warnock v. Russell, 2 Ill. 383; Linn v. Buckingham et al., 2 Ill. ...
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Linn v. Buckingham
...costs. Judgment affirmed. Old Note. See Kettelle v. Wardell, decided Dec. term, 1839, post; Warnock v. Russell, 2 Ill. 383; Seward v. Wilson, and note, 2 Ill. 192. See, also, Vance and Breese v. Funk et al., decided June term, 1840, where it was held that the execution of a note signed J. E......
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Droullard v. Baxter
... ... in the present case.The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings.Judgment reversed.WILSON, Ch. J., did not sit in this ... ...