DECISIONS OF THE SUPREME COURT OF THE STATE OF ILLINOIS, ΟΥ CASES ARGUED AT NOVEMBER TERM, 1861, AT MOUNT VERNON. THE OHIO AND MISSISSIPPI RAILROAD COMPANY, Appellant, v. JAMES MCCUTCHIN, Appellee. ERROR FROM CLAY. The case of Swingley v. Haynes, 22nd Illinois, 216, examined and approved. peace THIS was an appeal from a judgment of a justice of the in Clay county, rendered against the railroad company on the 16th of April, 1859. Summons was issued, and the return of the constable thereon showed that the process was served on "Charles Weir, Station Agent of the Ohio and Mississippi Railroad Company at Xenia," etc. At the October term of the Circuit Court of Clay county, the defendant below filed a plea in abatement, and moved to dismiss the cause. The motion was overruled, and cause continued. At the March special term, the defendant below renewed the motion to dismiss the cause, on plea in abatement denying NOTE.-Mr. Justice Breese did not take any part in the decisions of this term. His absence was by reason of a severe domestic affliction. 27 27 9 88a 348 Ohio and Mississippi R. R. Co. v. McCutchin. the jurisdiction of the justice. The order overruling the motion at October term was set aside. At the regular May term, 1860, it was agreed between the parties that the facts averred in the plea of abatement were true; that Charles Weir was not the agent, and never has been the agent of the railroad company at Xenia; and that no service had been had upon the company. Upon this agreement the cause was tried by the court without any other evidence, and judgment rendered in favor of the plaintiff below. Defendant excepted, and appealed. The errors assigned are, that the court erred in overruling the motion of the defendant below to dismiss the cause for want of jurisdiction in the justice; and the court erred in rendering judgment in favor of the plaintiff below. W. HOMES, and EDWIN BEECHER, for Appellant. J. G. BOWMAN, for Appellee. WALKER, J. We are asked in this case to review the grounds of our decision in the case of Swingley v. Haynes, 22 Ill. 216. Lest we may in that case, have overlooked some rule that might have induced a different conclusion from that announced, we cheerfully undertake the careful reconsideration of the question, and have given to it such thought and reflection as time and opportunity have permitted. The question is, whether under our statute, the Circuit Court acquired jurisdiction of a party, not served with process before a justice of the peace, but who appeals from a judgment rendered by the justice. Or must there be service or appearance before the justice, to authorize the trial of a cause taken by appeal to that court? That a judgment rendered against a defendant without either actual or constructive notice or appearance is void, there can be no question. But does he, by presenting an appeal from such a judgment, confer upon the Circuit Court jurisdiction of his person, and thereby authorize the Circuit Court to proceed to a trial on the merits? If not, what is his standing in that court? He is there for some purpose, and so is his case. He cannot say he is not in that court, after he has brought his appeal. Then is such an appeal only a writ of error, or is it an appeal for all purposes? From the sixty-sixth and sixty-seventh sections of the statute regulating justices of the peace and constables, it is manifest that the design of the General Assembly was to give a trial de novo on the merits in all appeal cases. It was to dispense with all technicalities, and to afford a speedy trial on the Ohio and Mississippi R. R. Co. v. McCutchin. merits. It would also seem that it was designed that the Circuit Court should not be a court for the correction of errors, appearing on the records of judgments of justices of the peace. From all the legislation in reference to appeals it is the manifest design to give a new trial on the merits. But it is supposed that the case of Bines v. Proctor, 4 Scam. 174, the first case that arose under the provision of these sections, announces a different rule. In that case, the question was, whether a defect in a justice's summons, which omitted to name a time when the defendant should appear, was subject to exception in the Circuit Court on appeal, and it was held that it was not. This seems to have been the only question properly presented to the court in that case, and yet the court say, that by this enactment, "the appellant is prevented from excepting in the Circuit Court to any proceeding before the justice, except such as are not only wholly without authority of law, but also, had without notice to, or the knowledge and consent of the defendant." "And that he may object when no summons or other process has been issued against him, where there has been no service of the summons, or other process issued by the justice, upon the defendant, and no notice to him, actual or constructive, of the pendency before the justice, of the suit against him, in which the judgment has been rendered." It now seems to us, that what is there said was unnecessary to the decision of any question in that case. It in effect holds, that no exception can be taken for the want of a summons. But if it were conceded, that in the case of Bines v. Proctor, it was designed to give the construction, indicated by the language employed, has the court subsequently acted upon it, as the proper construction? In the case of Rogers v. Blanchard, 2 Gil. 335, it was held that when the justice's jurisdiction is doubtful, as to amount, that it is the duty of the Circuit Court, on appeal to hear the evidence, in order to determine the question. To the same effect are the cases of Ballard v. McCarty, 11 Ill. 501, and Vaughn v. Thompson, 15 Ill. 39. These decisions are strictly in accordance with the requirements of the sixty-seventh section. It provides that if it appears that the justice had no jurisdiction of the subject matter of the suit, it shall be dismissed at the costs of the plaintiff. The statute provides that upon the trial of all appeals, no exception shall be taken to the form or service of the justice's summons; but the court shall hear and determine the same in a summary way according to the justice of the case. But |