#### Mary R. Beamesderfer, Defendant in Error, v. Anton J. Cermak, Bailiff, Plaintiff in Error.

Gen. No. 22,648.

(Not to be reported in full.)

Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.

Reversed and remanded with directions.

Opinion filed January 22, 1917.

Statement of the Case.

Action by Mary E. Beamesderfer, plaintiff, against Anton J. Cermak, bailiff of the Municipal Court of Chicago, defendant, to replevy certain personal property. From a judgment for the plaintiff on default, defendant brings error.

The replevin writ was made returnable to the April term beginning April 12,1915. The defendant entered *295appearance March 30, 1915. Plaintiff’s declaration was filed May 13,1915. The May term began May 10, 1915. Defendant did not plead. The case was called for trial February 28,1916, and, defendant not appearing, he was defaulted and judgment entered.

Abstract of the Decision.

1. Dismissal, nonsuit and discontinuance, § 37 * —when non-suit proper. Under section 32 of the Practice Act (J. & A. U 8569), where a declaration is not filed ten days before the term of court next after the term to which a summons is made returnable, the defendant is entitled to a judgment as in case of nonsuit.

2. Tbial, § 7 * —when case may he called for trial. It is error to call a case for trial before it is at issue.

G-urdon Williams and M. J. 0 ’Donoghue, for plaintiff in error.

J. Marion Miller, for defendant in error.

*

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

Mr. Presiding Justice McSurely

delivered the opinion of the court.