Clary v. Cox (1 Ill. 235, 1827)

Opinion of the Court by

Justice Smith.

The only point made in this cause is, whether the circuit court erred in quashing the execution as to one of the defendants, upon his disclosure, by affidavit, of his belief that he did not execute the bond given, upon the granting of the writ of certiorari. This bond may be considered as analogous to the bond given, when an appeal is taken from the decision of a magistrate; and the circuit court seem so to have considered it, and entered up a judgment against the principal and' the securities in the bond, upon which judgment the execution against the defendants was issued, as is provided in the case of appeals, by the provisions of the sixth section of the act defining the duties of justices of the peace and constables, approved 18th February, 1823. It is not necessary to consider what the circuit court might have done, upon an application to have the judgment vacated, if they had. been satisfied of the truth of the facts contained in the affidavit of Durley, one of the defendants, or what would have been the powers of the court in reference to such an application. The execution, it is not pretended, does not follow the judgment, nor is any regularity on its face complained of. The matters disclosed, relate to the non-execution of the bond only; it was therefore manifestly erroneous for the circuit court to have quashed the execution for the causes alleged. Until the judgment was set aside or vacated, the execution was entirely regular: the party has mistaken his remedy, if he has one. The judgment of the circuit court in quashing the execution must, therefore, be reversed, with leave to the plaintiff, in the court below, to sue out a new execution, if necessary; he is also entitled to costs.

Judgment reversed.

“ Appeals from the judgment of justices of the peace shall be allowed, &c., provided the party shall first give a bond as is required by the second section of the act entitled “An act regulating appeals from justices of the peace, and further defining their duties,” which bond so given shall have the force and effect of a judgment, and execution may be issued thereupon upon default of the condition of the said bond; a certificate of such bond having been given, shall be presented to the justice from the clerk of the circuit court; whereupon it shall be the duty of the justice to make out a transcript,” &c. Laws of 1823, page 189; section 6.