County of Grundy v. Yarnell.

action arises upon a pure contract, the doctrine in this State seems to be that a municipal corporation is liable for interest only upon express agreement to pay it. County of Pike v. Hosford, 11 Ill. 170; City of Chicago v. The People ex rel. etc. 56 Id. 327.

And the county must be expressly or impliedly authorized to make such agreement. County of Hardin v. McFarlan, 82 Id. 138; Hall v. The County of Jackson, 5 Bradwell, 612. In this case there was no such agreement or authority to make it. And for this error the judgment is reversed and the cause remanded. If, however, the plaintiff shall remit, to the amount of the interest allowed, we see no objection to an entry of judgment for the bounty without further trial. Doxey v. Miller, 2 Bradwell, 34.

Reversed and remanded.

THE COUNTY OF GRUNDY

V.

MILTON G. YARNELL.

1. STATEMENT.-This is similar to the preceding case, and reversed and remanded for the same reasons.

APPEAL from the Circuit Court of Grundy county; the Hon. GEORGE W. STIPP, Judge, presiding. Opinion filed February 28, 1881.

Messrs. JORDAN & STOUGH, for appellant.

Mr. WILLIAM BURRY, for appellee.

PLEASANTS, J. The controlling questions on this record are the same as those presented in the case of the county against Anthony Hughes, 8 Bradwell, 34. We think the ruling of the circuit court in sustaining the demurrer as to the third count was right, on the ground that whatever obligation was assumed by the resolution set forth in said count was personal and not on behalf of the county.

8 44 47 518

McCarty v. Reeve.

The only error we discover was the allowance of interest, which may be disposed of as indicated in the opinion filed in the case above mentioned.

Reversed and remanded.

ROBERT MCCARTY

V.

TRACY REEVE.

1. BILL TO FORECLOSE A MORTGAGE AND CORRECT A MISTAKE IN DESCRIPTION, INVOLVES A FREEHOLD.-Appellant Robert McCarty executed a mortgage to the appellee; by a mistake of the person who drew it an eighty acre tract was described as being in section 22 when it should have been section 28, upon discovering the mistake the mortgagor conveyed the eightyacre tract to his son one of the appellees. A bill was filed to foreclose the mortgage and correct the mistake: held, that a freehold was involved and the appeal should have been taken to the Supreme Court.

APPEAL from the Circuit Court of Lee county; the Hon. WILLIAM BROWN, Judge, presiding. Opinion filed April 6,

1881.

Bill filed by the appellee against the appellants to correct a mistake in a mortgage and for foreclosure.

It is alleged that by the mistake of the scrivener one eightyacre tract was described as being in section twenty-two, when it should have been section twenty-eight..

That the mortgage was made by the appellant Robert McCarty to the appellee, and that after said mortgage was made, the said Robert McCarty discovering the mistake, deeded said eighty-acre tract to his son William P., the other appellant.

That said deed was without consideration and was executed to defraud the complainant."

The prayer of the bill is that said deed to William P. may be decreed to be null and void as to the rights of the complainant, that said mortgage may be reformed and declared as a first lien upon all the mortgaged premises including that part claimed by William P. under said deed.

Aldrich v. City of Polo.

William P. answered the bill, denying that any mistake was made, and if made, that he had any notice thereof when he bought the land; denies that his deed was without consideration or made to defraud complainant; avers payment of full value for the land, possession in himself under said deed from his father, and claims to be owner in fee.

Robert McCarty also answered the bill, denying the material allegations thereof. Upon hearing, the court found the bill sustained by the proofs, reformed, and foreclosed the mortgage and decreed the deed from Robert McCarty to William P. void. From this decree this appeal is taken.

Mr. THOMAS P. DUFFEY and Messrs DIXON & BETHEA, for appellants.

Mr. A. K. TRUESDELL, for appellee.

PILLSBURY, J. The title to the eighty-acre tract clained to be omitted from the mortgage, was in William P. McCarty in fee. The records of the county did not disclose any lien upon it at the time of his purchase.

The direct operation of the decree is to deprive him of his fee simple title, by subjecting it to the title of the mortgage. A freehold is thus involved in this cause, and the appeal should have been taken to the Supreme Court. We have no jurisdiction to determine the question whether the decree of the court below, was proper in depriving the said William P. of his fee in the land.

The appeal must therefore be dismissed.

Appeal dismissed.

TILSON ALDRICH

V.

THE CITY OF POLO.

1. APPEALS FROM JUSTICE-RIGHT OF PLANTIFF AND DEFENDANT TO― JURISDICTION.-Where one party to a judgment before a justice of the peace takes an appeal to the circuit court, the other party, if he wishes to appeal,

Aldrich v. City of Polo.

must take his appeal to the same court and cannot appeal to the county or any other court. The court to which the first appeal is perfected obtains exclusive jurisdiction.

2. APPEALS TO CIRCUIT AND COUNTY COURTS.--Where an appeal was taken by a plaintiff from a judgment of a justice of the peace to the circuit court and perfected and after such appeal was perfected and within the twenty days after the rendition of the judgment the defendant took an appeal to the county court, held that the circuit court having first acquired jurisdiction, the appellee was bound to follow the appeal and litigate the entire controversy in that tribunal. If he fears the appellant would dismiss his appeal he would likewise have appealed to the same court.

3. THE COUNTY COURT NO JURISDICTION OF SECOND APPEAL-That the county court acquired no jurisdiction to try the cause, and it was proper to strike the cause from the docket of that court. The case having been continued by agreement, the court had jurisdiction to strike it from the docket, although no appeal summons had been issued.

4. TRANSCRIPT-That the justice having sent the original papers up to the circuit court, they could not be obtained to file in the county court.

APPEAL from the County Court of Ogle county; the Hon. ALBERT WOODCOCK, Judge, presiding. Opinion filed April 6,

1881.

The city of Polo recovered a judgment against the appellant before the police magistrate of that city, and not being satisfied therewith on the same day the magistrate rendered the judgment, prayed an appeal to the Circuit Court of Ogle county. The prayer for the appeal was entered upon the docket by the magistrate, who, within the twenty days thereafter, caused a transcript of the docket and the papers in the case, to be filed with the clerk of the circuit court. On the nineteenth day after rendition of the judgment the appellant filed an appeal bond, in the office of the clerk of the county court, and subsequently caused a supersedeas to be issued to said justice with a command to return the papers and a transcript to the county court.

The cause was continued in the county court by the agreement of the parties, no return having been made by the magistrate. At the February term, 1880, of said county court, the cause was again continued by agreement until the June term.

At said June term the magistrate, in obedience to a writ of certiorari previously issued, filed in said county court a

Aldrich v. City of Polo.

transcript of his docket, and making a further return that he could not send up the papers in the cause for the reason that he had within twenty days from the date of the judgment sent them to the clerk of the circuit court, to which court the city had appealed said cause.

Upon this return the appellee moved the county court to strike said cause from the docket because the appeal was taken to and was pending in the circuit court. The county court sustained the motion and the defendant appeals to this court.

Mr. MORTON D. SWIFT and EDWARD F. DUTCHER, for appellant; that both parties may appeal from the judgment of a justice of the peace, cited Bacon v. Lawrence. 26 Ill. 53.

The court had no jurisdiction to strike the case from the docket, no appearance in writing having been entered and no summons issued: Camp v. Hogan, 73 Ill. 228.

Mr. JAMES W. ALLABEN and Mr. JAMES H. CARTWRIGHT, for appellee; that jurisdiction of the subject-matter is obtained by the justice transmitting the papers in the case with a transcript to the clerk of the court to which the appeal is taken, cited Reed v. Driscoll, 84 Ill. 96; Campbell v. McCahan. 41 Ill. 45.

In case the appeal is taken and perfected before the justice, the superior court acquires jurisdiction at once over the parties. No summons to the appellee is required, but he is bound to take notice of the appeal: Boyd v. Kocher, 31 Ill. 295; Fix v. Quinn, 75 Ill. 232.

The county court had no jurisdiction of the case: Wadhams v. Hotchkiss, SO Ill. 437.

In cases of concurrent jurisdiction the court which first obtains jurisdiction of the subject-matter must proceed and finally dispose of it: Mason v. Piggott, 11 Ill. 85; Ross v. Buchanan, 13 Ill. 55; 2 Kent's Com. 125; Smith v. McIver, 9 Wheaton, 523; Slyhoof v. Flitcraft, 1 Ashmead, 171; Merrill v. Lake, 16 Ohio, 373; 1 Grant's cases, Penn. 212; Ex parte Bushnell, 8 Ohio St. 599; 25 Barber N. Y. 513; Ex parte Holman, 28 Iowa, 88.