#### August Young, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1914.

Reversed.

Opinion filed July 28, 1914.

*404Abstract of the Decision.

Costs, § 14*—when judgment against defendant on dismissal for want of prosecution erroneous. Where in a personal injury case the plaintiff failed to appear on the day set for trial and the defendant *405moved that the suit be dismissed for want of prosecution and for a judgment against plaintiff for costs, and in support of the motion presented a release from liability and an agreement executed by the plaintiff to dismiss the suit and pay the costs, held it was the duty of the court to enter judgment against plantiff for costs unless he had procured an order to prosecute as a poor person, and that the action of the court in entering on its own motion a judgment against defendant for costs, for the reason it appeared that plaintiff was insolvent and unable to pay costs, was improper.

*404Statement of the Case.

Action by August Young against Bast St. Louis & Suburban Bailway Company to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant.

Between the time of the instituting of said suit and the date set for trial plaintiff settled his cause with defendant for the amount of two hundred and seventy-five dollars, and agreed to dismiss his suit and pay the costs. Defendant paid plaintiff the two hundred and seventy-five dollars and plaintiff signed an agreement releasing defendant from any further liability ; and it was further provided in said agreement that plaintiff was to dismiss the aforesaid suit at his cost. On the day set for trial the plaintiff failed to appear and a motion was interposed by defendant to dismiss the suit for want of prosecution, and for judgment against the plaintiff for costs, and in support of such motion presented a release and agreement containing the provision above set forth. The court refused to dismiss the suit at cost of plaintiff because it appeared that the plaintiff was insolvent and unable to pay costs, but of its own motion rendered judgment against the defendant for costs. To reverse the judgment, defendant prosecutes this appeal.

Barthel, Farmer & Klingel, for appellant.

L. P. Zerweck, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McBride

delivered the opinion of the court.