Challenor v. Mulligan

Citations

• 110 Ill. 666

Syllabus

<p>1. Practice—time in which to procure a return to a writ of error. The statute has prescribed no time within which a return to a writ of error shall be made by the clerk of the court to whom it is directed. The practice in that regard is regulated alone by the rules or practice of the court from which the writ issues.</p> <p>2. Same—effect of neglect to have record sént up. Under a rule of the Appellate Court requiring a plaintiff in error or appellant to file abstracts and briefs on or before the second day of the term unless the time is extended, and that on failure to do so the judgment or decree of the court below shall be affirmed, on a writ of error to the circuit court, when no return to the writ had been returned by the clerk by sending up the record at the second term of the Appellate Court, though service had been made on the defendant in error before the first term, an order of continuance at the second term of the Appellate Court was set aside and the decree below affirmed, without any rule having first been taken to bring up the record: Held, no error in affirming the decree complained of.</p> <p>3. Error—presumption in favor of action of lower court. Where the Appellate Court affirms a decree sought to be reversed on writ of error, on the ground of a neglect of the plaintiff in error to have a transcript of the record sent up at the second term after service of the scire facias, unless it is made to appear to this court that the Appellate Court has thereby violated some rule of practice, it will be presumed that court has acted properly, and its judgment will be affirmed.</p> <p>4. Appellate Court—power to prescribe rules of practice. By section 10 of the act creating the Appellate Courts, that court is required to conform to the practice of this court so far as regulated by the statute, so far as it is applicable to that court; but in other respects that court may prescribe and construe its own rules and regulate its own practice.</p> <p>5. Same—rul