Lathrop v. Hayes

Citations

• 57 Ill. 279

Syllabus

<p>1. Justices of the peace—consolidating causes of action—suit subsequently brought by defendant—construction of act of 1845. Under section 85, chapter 59, Revised Statutes of 1845, where a party commences his action before a Justice of the Peace, the adverse party, if he have any demands existing at the time of the commencement of the suit, must bring forward the same to be litigated in that particular suit, if the same are of such a character that they can be consolidated, and which do not exceed §100 when consolidated into one defense, and failing to do so, and the suit proceeds to final judgment, he is forever debarred from the privilege of suing for any such debt or demand.</p> <p>2. So where a party commenced an action before a justice of the peace, against another, and as soon as service of process was had, the defendant commenced an action against the plaintiff, before another justice, the claims of both parties being under $100, and of such a nature that they could have been legally consolidated in one action and defense, and the suit first commenced having progressed to final judgment, and the defendant therein failed to set off his claim as the law required him to do, it was held, he could not maintain his action subsequently commenced in respect thereto, although he obtained judgment therein, by default, before the justice, an appeal being taken therefrom to the circuit court, prior to the rendition of the judgment in the suit previously commenced against him.</p> <p>3. The statute, however, does not apply to actions commenced under the attachment laws of this State. For in such actions the defendant may have no actual, but only constructive, notice of the pendency of the suit, and therefore could have no opportunity to bring forward his demands, aud ought not to be debarred of his right of action without a day in court.</p>