Evans v. Bouton

Citations

• 85 Ill. 579

Syllabus

<p>1. Justice op the peace—jurisdiction in replevin depends on affidavit. In replevin before a justice of the peace, as in forcible entry and detainer, there must be an affidavit sworn to or affirmed containing all the statutory requirements, to give the justice jurisdiction to issue the writ, and this must affirmatively appear, as nothing can be presumed in favor of his jurisdiction.</p> <p>2. Practice—time of making dilatory motions. When the defendant in an action of replevin does not appear before the justice’s court in which the suit is brought, and the cause is appealed to the circuit court, where the cause is continued from term to term, but not on the defendant’s motion, he will be in time in moving the court to dismiss the suit for want of an affidavit when the cause is called for trial.</p> <p>3. Since there is no law making it the duty of a defendant to appear to a summons issued by a justice of the peace, his non-appearance should work him no prejudice, and if he makes a motion going to the jurisdiction at the earliest moment on appeal in the circuit court, he will be in time.</p>