Johnson County IL Archives Court.....Miller, Richard S Adams V Frederick 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 17, 2008, 9:35 pm

Source: Reports Of Cases - Il
Written: 1850

Richard S. Adams, plaintiff in error, v. Frederick Miller, et al., defendants 
in error.

Error to Johnson.

The statute requiring security for costs to be given before commencing penal 
actions, applies to actions of that character, prosecuted before justices of 
the peace.

If security for costs should not be given, a motion should be made to dismiss 
before the justice; if refused by the justice, it may be renewed in the 
Circuit Court; but being of a dilatory character, such an objection must be 
presented on the first opportunity. (a)

This was an action commenced before a justice of the peace of Johnson county, 
to recover a penalty for a failure on the part of the defendants in error to 
discharge their duties as public millers, under the act regulating mills and 
millers. A judgment was rendered by the justice for a penalty of five dollars 
against the defendants below, by default. The defendants below prayed an 
appeal to the Circuit Court of that county.

In the Circuit Court, the defendants below appeared and entered a motion to 
dismiss the suit, becase the plaintiff below had failed to give security for 
costs, before commencing suit. The plaintiff thereupon moved for leave to file 
a bond nunc pro tunc. The Circuit Court refused the latter motion, and 
dismissed the suit upon the motion of the defendants. The plaintiff below 
prosecutes this writ of error, and assigns for error, the decision of the 
Circuit Court, in refusing to permit him to file security for costs nunc pro 
tunc, and in dismissing the suit.

The cause Was tried by Denning, Judge.

J. Jack, for plaintiff in error:

Urged that security for costs should only be given in penal actions, before 
the Circuit and Supreme Courts: R. S., p. 126; Allen v. Belcher, 3 Gil., 594. 
That suit could not be dismissed, unless it appeared that the plaintiff was a 
non-resident. That the statute under which the action was brought is remedial 
as well as penal: Hyde v. Crogan, Doug., 673; Wynne v. Middleton, 1 Wilson.

R. F. Wingate, for defendants in error:

This being a penal action, the plaintiff should have filed a bond for costs, 
at the time of the commencement of the suit before the justice: R. S., p. 126, 
sec. 1; Gil., 559.

The judgment having been rendered by default against the defendants in error, 
in the justice’s court, they had a right to move to dismiss the suit on appeal 
in the Circuit Court. The defendants could not have waived their right to 
dismiss in the Circuit Court, since they did not appear before the justice, 
and the return on the summons before the justice, not being sufficient to give 
the justice jurisdiction over third persons, which return is in these words 
and figures: "Served on the defendants on the 9th inst."

Treat, C. J. - Adams brought an action against Miller and others, before a 
justice of the peace, to recover a penalty of five dollars for a violation of 
the statute respecting mills and millers. Process was served on the 
defendants, and failing to appear before the justice, judgment was rendered 
against them for the amount of the penalty claimed, and costs. The defendants 
prosecuted an appeal to the Circuit Court, where the suit was dismissed, on 
their motion, because the plaintiff omitted to give security for costs. On the 
principle of the case of Robertson v. The County Commissioners (5 Gilman, 
559), the plaintiff should have given security for costs before the 
commencement of the action. At the time of the passage of the act of the tenth 
of January, 1827, which is incorporated into the twenty-sixth chapter of the 
Revised Statutes, justices of the peace had no jurisdiction of this kind of 
actions: Bowers v. Green, 1 Scammon, 42. But the jurisdiction was subsequently 
conferred on them: R. S., ch. 71, sec. 15. And after it was conferred, the 
statute requiring security for costs to be given in penal actions, applied to 
actions of that character prosecuted before justices. If the defendants had 
raised the objection before the justice, the suit should have been dismissed; 
but it came too late for the first time in the Circuit Court. If urged before 
the justice, and overruled by him, it might have been renewed in the Circuit 
Court: Robertson v. The County Commissioners, supra. The objection is a 
dilatory character, and must be insisted on at the earliest opportunity. The 
defendants, by neglecting to make the motion before the justice, waived the 
right to interpose it in the Circuit Court.

The Circuit County erred in dismissing the suit; and the judgment must be 
reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.

-----------------------------
(a) Followed in Adams v. Miller, 14 Ill., 71. As to motion to dismiss because 
no bond for costs has been filed, see Roberts v. Tabs, 32 Ill., 474 (annotated 
edition), and note; Yocum v. Town of Waynesville, 39 Ill., 221 (annotated 
edition), and note.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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