#### John E. Davies, Defendant in Error, v. James L. Apperson, Plaintiff in Error.

Gen. No. 14,297.

1. Teiai—when jury must he called. Upon the hearing of a cause appealed from a justice, it is error for the court to proceed without the intervention of a jury, the defendant to the action who *349has taken such appeal not appearing and. not having waived trial by jury.

2. Costs—form of judgment with respect to. Costs which follow as an incident to a judgment should not be included therein.

Attachment. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1908.

Reversed and remanded.

Opinion filed January 26, 1909.

Clair D. Vallette, for appellant.

Otis Wesner, for appellee.

Mr. Presiding Justice Smith

delivered the opinion of the court.

This suit in attachment was brought before a justice of the peace and judgment was recovered by the plaintiff against the defendant for $63 and costs. The defendant Apperson perfected an appeal to the Superior Court. On November 6, 1907, the case having been reached on the call of the calendar, was called for trial, and on motion of the plaintiff’s attorney it was ordered that the case be submitted to the court for trial without a jury; and thereupon the evidence was heard by the court which found the issues in assumpsit and in the attachment for the plaintiff and assessed the plaintiff’s damages at $75.64 and costs and entered judgment on the finding, to reverse which judgment this proceeding in error was prosecuted.

There were in contemplation of law such pleas of the defendant on file as were necessary to present the defense of the defendant. The record shows no waiver of a jury by the defendant. There was therefore no warrant for the motion of plaintiff’s attorney to submit the cause to the court without a jury for trial, and no warrant for the order of court to that effect, and it was substantial error requiring a reversal of the judgment. Barnett v. Craig, 38 Ill. App. 96.

The final judgment of the court included in the amount named by it costs which had accrued to the *350amount of $6.50, which would have been carried by the judgment if they had not been included in the amount named. There is therefore a double judgment for that amount in the judgment rendered.

For the errors indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.