Bines v. Proctor

Citations

• 5 Scam. 174

Syllabus

<p>Appeal from Peoria.</p> <p>1. Appeal — jurisdiction of justice. The “ act to amend the several laws in relation to appeal bonds and the trial ol appeals,” approved March 2,1839. inhibits the appellant from objecting, in the circuit court, to the sufficiency of the summons issued by the justice, the service thereof upon him, or to “any illegality or irregularity in the proceedings of the justice,” in cases where no summons is by law required to be issued ; as in cases of trial and judgment, without process, by consent, suits commenced by attachment,trials of right of property, etc. (a) But the appellant may still object, in the circuit court, that the judgment of the justice was rendered against him wholly without his knowledge or consent, where no summons or other process whatever has been issued against him, or where there has been no service of the process upon the defendant, and no notice to him, actual or constructive, of the pendency of the suit before the justice. In these cases, andin no other, where the justice has jurisdiction of the subject matter of the suit, the circuit court should, on motion of the appellant, dismiss the suit, and reverse the judgment.</p> <p>2. Same — same. Objections to the proceedings of the justice, on the ground that the defendant has had no notice, or but an insufficient notice of such proceedings, are</p> <p>in the nature of a plea in abatement to the jurisdiction of the justice, and are [*175] required to be made at the first moment at which the defendant is able to make them. Where he has had no notice, this is on appeal to the circuit court; but it is otherwise, where the defendant has had notice of the proceedings before the justice, although not strictly such as the’law requires. (b) </p> <p>3. Case, etc. — affirmed. The doctrine in the case of Evans v. Pierce, 2 Scam. 409, is re-affirmed.</p>