#### Charles Counselman v. Jeremiah Sullivan.

1. Practice—Where One of Two Defendants Appeals.—Where one of two defendants appeals from the judgment of a justice of the peace and the other does not, nor enter his appearance, and the process issued against him is returned not served, the statute provides that the cause shall, at the first term of the court, be continued.

Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Reversed and remanded.

Opinion filed March 18, 1902.

October 28, 1898, before a justice of the peace, there was rendered a judgment in favor of defendant in error and against plaintiff in error and one Harry B. Clifford jointly, for $200 and costs. November 15, 1898, plaintiff in error filed his appeal bond with the clerk of the Circuit Court, which was approved, and a supersedeas issued to the justice. A transcript of the justice’s judgment and the appearance of defendant in error were duly filed with the circuit clerk, who on January 24, 1899, issued a summons for service on Harry B. Clifford, returnable to the February (1899) term of the court. This summons was returned by the sheriff, on February 20, 1899, “Not found.” On February 20, 1899, (at the January term,) without any service on or appearance by, Clifford, the appeal was dismissed for want of prosecution. This dismissal is assigned for error.

C. Stuart Beattie, attorney for plaintiff in error.

Thornton & Chancellor, attorneys for defendant in error. .

Mr. Justice Waterman

delivered the opinion of the court.

Section 70 (180) of Chapter 79, Hurd’s Edition, 1901, of the Be vised Statutes, clearly provides that in such a condition as existed in this case the cause shall, at the first teym. of the court, be continued.

The statute is, in this regard, hardly open to construction; it has, however, been passed upon by the Supreme *308Court in Stewart v. Peters, 33 Ill. 383, and Walter v. Bierman, 59 Ill. 186, and by the Appellate Court in Bourton v. Rathbone, 23 Ill. App. 654.

The judgment of the Circuit Court is reversed and the cause remanded.