Dye v. Noel

Citations

• 85 Ill. 290

Syllabus

<p>1. Cebtiobabi uhdeb the statute—petition must show diligence. A petition for a certiorari, under the statute, is defective if it fails to show that the judgment sought to he reviewed was not the result of negligence in the petitioner, and that it was not in his power to have taken an appeal in the ordinary way.</p> <p>2. Same—negligence in defense of suit. A defendant will not be excused for failing to attend at the term of the county court to which the summons is made returnable, so as to remove the cause by certiorari on the ground that the cause was not set for hearing at that term. There is no necessity for a special order setting down a cause for hearing at the return term.</p> <p>3. Same—delay in talcing appeal. Where a defendant’s attorney in fact is notified of the result of a suit a few days after the rendition of judgment, and does not procure an appeal bond until fifteen days after the date of the judgment, and mails the same two days before the expiration of the time for appealing, and the same is not received by the proper officer within</p> <p>time, he will he guilty of such negligence as to preclude him from removing the cause by certiorari.</p> <p>4. Same—negligence in defending. A petition for a certiorari which attempts to excuse the party from defending at the return term, on the ground of the absence of the attorney in fact of the defendant in Ohio to arrange for taking the depositions of witnesses, is defective if it does not show why this could not have been attended to without the personal attendance of such attorney, and this more especially if it appears that such attorney returned in time to have been present in court before the trial.</p> <p>5, Costs—administrator not personally liable. Where a certiorari under the statute, taken by an administrator to the circuit court, in a case where he is prosecuting a claim, is dismissed, it is error to render a general judgment against him for costs. It should be special, to be paid in tbe due cou