Fairbank v. Streeter

Citations

• 142 Ill. 226
• 31 N.E. 494

Syllabus

<p>1. Appeal — by defendant in forcible detainer — how taken. As the defendant in an action of forcible detainer can give no appeal bond until the amount thereof is fixed by the trial court, he can not take an appeal from a judgment against him until the amount of his bond is fixed by such court. Sections 18 and 19 of the Forcible Entry and Detainer act are to be construed together, so that every part of both sections may have proper force and effect.</p> <p>2. Sections 18 and 19 of the Forcible Entry and Detainer act clearly manifest an intention that, whether a forcible entry and detainer case is tried in a justice’s court or a court of record, the defendant can only perfect an appeal from a judgment then rendered by praying the same, and filing his bond in an amount fixed by the trial court within five days from the rendition of such judgment.</p> <p>3. Same — by defendant in forcible detainer — amount of bond — how determined. There can be no appeal pending, and hence no court in which the appeal is pending, until the bond is executed and filed, and as no legal bond can be made until the amount of it is fixed by the court, necessarily the trial court alone can determine the amount. The court in which the appeal may be pending is authorized to require a new bond in a larger amount than the first, but only upon a showing that such new bond is necessary to secure the rights of the parties.</p> <p>4. Same — right lost by failure to comply with the statute. The right of appeal is a statutory one, and can only be availed of by complying with the substantial requirements of the statute authorizing it. In order, therefore, that an appeal may be sustained, the right of the party to appeal must clearly appear, and it is consequently lost by any failure to comply with the statutory regulations.</p> <p>5. Same — motion to dismiss for want of sufficient bond — waives objection to jurisdiction. A party contending that no appeal has been perfected for want of a compliance with