{ "id": 4959556, "name": "H. H. Antrim, Appellant, v. Guyer and Calkins Company, Appellee", "name_abbreviation": "Antrim v. Guyer & Calkins Co.", "decision_date": "1945-02-08", "docket_number": "Gen. No. 9,998", "first_page": "641", "last_page": "648", "citations": [ { "type": "official", "cite": "324 Ill. App. 641" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "215 Ill. 285", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5618509 ], "opinion_index": 0, "case_paths": [ "/ill/215/0285-01" ] }, { "cite": "153 Ill. 25", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3030274 ], "opinion_index": 0, "case_paths": [ "/ill/153/0025-01" ] }, { "cite": "35 Ill. 470", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5257184 ], "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/ill/35/0470-01" ] }, { "cite": "1 Ill. (Breese) 268", "category": "reporters:state", "reporter": "Breese", "case_ids": [ 435636 ], "opinion_index": 0, "case_paths": [ "/ill/1/0268-01" ] }, { "cite": "118 Ill. App. 662", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 874292 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ill-app/118/0662-01" ] }, { "cite": "213 Ill. App. 429", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5457768 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ill-app/213/0429-01" ] }, { "cite": "124 Ill. App. 319", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2502620 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/ill-app/124/0319-01" ] }, { "cite": "85 Ill. App. 322", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5264154 ], "year": 1899, "opinion_index": 0, "case_paths": [ "/ill-app/85/0322-01" ] }, { "cite": "239 Ill. App. 484", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3128431 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/ill-app/239/0484-01" ] }, { "cite": "90 Ill. App. 192", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 1673337 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ill-app/90/0192-01" ] }, { "cite": "88 Ill. App. 428", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5278949 ], "year": 1899, "opinion_index": 0, "case_paths": [ "/ill-app/88/0428-01" ] }, { "cite": "265 Ill. App. 127", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3333486 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/ill-app/265/0127-01" ] }, { "cite": "288 Ill. App. 629", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3243320, 3245001, 3246029, 3244590 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/ill-app/288/0629-03", "/ill-app/288/0629-02", "/ill-app/288/0629-04", "/ill-app/288/0629-01" ] }, { "cite": "112 Ill. App. 598", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2551503 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/ill-app/112/0598-01" ] }, { "cite": "133 Ill. App. 50", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2473892 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ill-app/133/0050-01" ] }, { "cite": "93 Ill. App. 5", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5288219 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/ill-app/93/0005-01" ] }, { "cite": "101 Ill. App. 307", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2598469 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/ill-app/101/0307-01" ] }, { "cite": "89 Ill. App. 217", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5280504 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ill-app/89/0217-01" ] }, { "cite": "88 Ill. App. 344", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5279566 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ill-app/88/0344-01" ] }, { "cite": "82 Ill. App. 513", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5253912 ], "weight": 2, "year": 1899, "opinion_index": 0, "case_paths": [ "/ill-app/82/0513-01" ] }, { "cite": "271 Ill. App. 82", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3219311 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ill-app/271/0082-01" ] }, { "cite": "70 Ill. App. 49", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5254967 ], "year": 1897, "opinion_index": 0, "case_paths": [ "/ill-app/70/0049-01" ] }, { "cite": "285 Ill. 48", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4924366 ], "year": 1918, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill/285/0048-01" ] }, { "cite": "233 Ill. 113", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3377356 ], "year": 1908, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill/233/0113-01" ] }, { "cite": "83 Ill. App. 227", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5257369 ], "weight": 2, "year": 1899, "opinion_index": 0, "case_paths": [ "/ill-app/83/0227-01" ] }, { "cite": "227 Ill. App. 317", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5482700 ], "weight": 2, "year": 1923, "opinion_index": 0, "case_paths": [ "/ill-app/227/0317-01" ] }, { "cite": "70 Ill. App. 399", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5250570 ], "weight": 2, "year": 1897, "opinion_index": 0, "case_paths": [ "/ill-app/70/0399-01" ] }, { "cite": "317 Ill. 203", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5148566 ], "pin_cites": [ { "page": "215, 216" } ], "opinion_index": 0, "case_paths": [ "/ill/317/0203-01" ] }, { "cite": "378 Ill. 506", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2548367 ], "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill/378/0506-01" ] }, { "cite": "335 Ill. 136", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5788418 ], "opinion_index": 0, "case_paths": [ "/ill/335/0136-01" ] }, { "cite": "101 Ill. App. 144", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2596142 ], "opinion_index": 0, "case_paths": [ "/ill-app/101/0144-01" ] }, { "cite": "90 Ill. App. 595", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 1673325 ], "opinion_index": 0, "case_paths": [ "/ill-app/90/0595-01" ] }, { "cite": "79 Ill. 450", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2686137 ], "opinion_index": 0, "case_paths": [ "/ill/79/0450-01" ] } ], "analysis": { "cardinality": 658, "char_count": 11724, "ocr_confidence": 0.546, "pagerank": { "raw": 1.3993814665453554e-07, "percentile": 0.6444003105972588 }, "sha256": "f2e5cddbd3207b5133e5b8d342aeb7f0f58a1ed7012de5aeff8e74d9aa2a6cf6", "simhash": "1:83ae24b56c743c59", "word_count": 2105 }, "last_updated": "2023-07-14T17:50:43.082913+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "H. H. Antrim, Appellant, v. Guyer and Calkins Company, Appellee." ], "opinions": [ { "text": "Mr. Presiding Justice Dove\ndelivered the opinion of the court.\nIn an action by appellant against appellee before a justice of the peace of Stephenson county, judgment was entered against appellant on July 30,1943, including the costs. On August 4,1943, in an attempt to perfect an appeal to the circuit court, appellant filed with the justice of the peace an appeal bond in the sum of $15 executed by himself only. The bond itself does riot show any filing mark nor any written approval thereof, but the office docket of the clerk of the circuit court shows that the bond and the transcript were filed in his office on August 4,1943, and that the advance filing fee of $5 had been paid to the justice of the peace.\nAt the beginning of the hearing in the circuit court, appellee moved to dismiss the appeal on the. ground that the appeal bond did not appear to have been filed, either with the clerk of the court or with the justice of the peace.; that there was no surety on the bond, and that the statute requires that the bond be taken and approved, either before the justice of the peace or before the clerk of the court, and that it have at least one surety. During the course of the hearing, appellant filed a motion for leave to file an amended appeal bond or a new appeal bond, which motion was denied by the court. At the close of the hearing appellee renewed its motion to dismiss the appeal, and the motion was granted, on the ground that there was not a substantial compliance with the statute, and the cause is here on an appeal from the order dismissing the appeal.\nThe transcript from the justice of the peace shows $7.50 costs accrued in that court, including the cost of the transcript and appeal bond, and judgment against appellant for that amount. Appellant offered to prove that he paid the same to the justice of the peace; that the latter prepared the appeal bond, and that appellant signed it in his presence; that the justice of the peace accepted appellant as security thereon, and verbally approved the bond by stating that he would take appellant as security, wrote \u201cAppealed\u201d on his docket the same day; and personally delivered the bond and transcript to the deputy circuit clerk on August 4, 1943, and that the deputy stamped them \u201cFiled.\u201d Objections to these offers of testimony were sustained.\nThe pertinent portion of sec. 1, art. X of the Justices and Constables Acts (Ill. Rev. Stat. 1943, ch. 79, par. 116 [Jones Ill. Stats. Ann. 71.112]), provides:\nThe party praying for an appeal shall, within twenty days from the rendition of the judgment, pay the fee provided by law for the filing of such appeals and enter into bond with security to be approved and conditioned as hereinafter provided, in substance as follows: (Setting out the form of the bond) . . . The bond shall be approved by and filed with either the justice of the peace rendering said judgment or the clerk of the court to which the appeal is taken.\u201d\nAppellant\u2019s brief states the \u201cErrors Belied Upon for Beversal\u201d as: The court erred (1) in overruling appellant\u2019s motion for leave to file an amended or additional appeal bond; (2) in refusing to receive the offered testimony of appellant and the justice of the peace as to the approval of the bond; and (3) in sustaining appellee\u2019s motion to dismiss.\nCounsel for appellee contends that the second assignment is not argued and is thereby waived. Although not argued by counsel for appellant under a specific heading, his brief repeatedly refers to the offered testimony on this phase of the case, and his reply brief specifically denies any intention to waive the point, and asserts reliance thereupon. We do not agree with appellee\u2019s claim that the point was waived. Under like provisions of sec. 1 in former acts, it was held that the approval of an appeal bond by a justice of the peace perfects an appeal although the bond is defective. (Miller v. Superior Mach. Co,, 79 Ill. 450.) It has also been held that it is not necessary that a formal approval of the bond be written thereon, but accepting the bond, expressing satisfaction with the security, and acting upon it, amounts to an approval. (Barker v. Smith, 90 Ill. App. 595; Smith v. Ammen, 101 Ill. App. 144.) The evidence on this point was competent, and should have been admitted.\nThe present Justices and Constables Act is the Act of 1895, as amended. Its title is \u201cAn Act to revise the law in relation to justices of the peace and constables.\u201d It contains no clause repealing any prior act. Sections 67-80 of the prior Act of 1872 were omitted from the 1895 Act. Section 69 of the Act of 1872, adopted from the Act of 1853, provides:\n\u201cNo appeal from a justice of the peace shall be dismissed for any informality in the appeal bond. But it shall be the duty of the court before whom the appeal may be pending, to allow the party to amend the same within a reasonable time, so that a trial may be had on the merits of the case.\u201d\nAppellee contends that because the Act of 1895 is a revision of the Act of 1872, the omitted sec. 69 was repealed by implication. Appellant takes the position that it was not so repealed. There are two general rules of law as to repeals by implication, mentioned in numerous cases in courts of review in this State. One of them, invoked by appellee is, that a revision of a law repeals by implication previous statutes on the same subject, although there be no repugnance and though there may be no express repealing clause or section in the revision, and that all parts and provisions of the former Act or Acts that are omitted from the revised Act are repealed. (People v. Borgeson, 335 Ill. 136.) The other rule, relied upon by appellant is, that repeals by implication are not favored, and it is only where two statutes relating to the same subject are clearly repugnant to each other and both cannot be carried into effect, that the former is repealed. To the extent that they are in conflict the first Act is repealed, but the parts of the first Act not affected remain in full force and effect. (City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 529; Village of Glencoe v. Hurford, 317 Ill. 203, 215, 216.)\nUnder the rule secondly above mentioned, it was held in Gibson v. Ackermann, 70 Ill. App. 399 (1897) that sec. 76 of the Act of 1872 was not repealed by the Act of 1895. Similarly, in Tongeln v. Knoll, 227 Ill. App. 317 (1923) where sec. 70 of the Act of 1872 was in controversy, it was held that none of the omitted sections of the Act of 1872 were repealed by the Act of 1895. These decisions are relied upon by appellant. In Gibson v. Achermann, supra, it is held that the Act of 1895 does not purport to revise the old law in so far as it contained provisions in regard to the proceedings in the circuit court, and that therefore it cannot be said to be a complete revision of the whole subject matter of the old Act. In McGillen v. Wolff, 83 Ill. App. 227 (1899), it was held that by adding the provisions of omitted sec. 68 of the Act of 1872 to the last sentence of sec. 1, art. 10 of the Act of 1895 (par. 116, supra), of the present statute, there is no repugnance between the two, but they are perfectly consistent and together establish a complete and harmonious rule 'of practice. The holdings in those two cases may well be applied to omitted sec. 69 of the Act of 1872. Furthermore, under the history of the legislation and its contemporaneous construction by the legislative and judicial branches of the State government and the bar, we are not of. the opinion that the first rule above mentioned is controlling in this case.\nPrior to the adoption of the Act of 1895, there were numerous decisions, both of the Supreme Court and ' the Appellate Courts of this State, to the same effect as sec. 69 of the Act of 1872. Some of them mentioned that section and others did not. In the view we take of the question, it is unnecessary to cite or discuss them further. In determining whether the omitted sections of the Act of 1872 are to be regarded as repealed by the Act of 1895, we regard as important the holdings in numerous cases since the adoption of the Act. of 1895, including the two cases above mentioned relied upon by appellant. Mo case is cited by appellee, and from our own research, we know of none, which hold's that any of the omitted sections of the Act of 1872 were repealed by implication on account of being omitted from the Act of 1895. On the contrary, since the adoption of the Act of-1895, there have been numerous decisions treating several of the omitted sections as still in force.\nIn Clarle v. City of Chicago, 233 Ill. 113, 115 (1908), and People v. Burdette, 285 Ill. 48, 50 (1918) omitted sec. 79 of the Act of 1892, prescribing six months limit on certiorari, was cited and treated as still in force. Section 68 was similarly treated in Baldwin v. Economy Furniture Co., 70 Ill. App. 49 (1897); Bevilaugua v. City of Taylorville, 271 Ill. App. 82 (1933); and Ward v. Schiesswohl, 82 Ill. App. 513 (1899), and was held to be not repealed in Bridge & Structural Iron Workers\u2019 Union v. Sigmund, 88 Ill. App. 344 (1900); McGillen v. Wolff, 83 Ill. App. 227 (1899); Scheldt v. Goldsmith, 89 Ill. App. 217 (1900); sec. 70 was treated as still in force in Counselman v. Sullivan, 101 Ill. App. 307 (1902); Ward v. Schiesswohl, supra; Ernst v. Friedl, 93 Ill. App. 5 (1901). In addition to Gibson v. Ackermann, supra, and Tongeln v. Knoll, supra, sec. 69 is treated as still in force in Enright v. Rehbach, 133 Ill. App. 50 (1907); Hepner v. Hepner, 112 Ill. App. 598 (1904); Otis v. Briar, 288 Ill. App. 629 (1937); Lyons v. Ernst\u2019s Estate, 265 Ill. App. 127 (1932). McRae v. Houdeshell, 88 Ill. App. 428 (1899), is based on sec. 74 as still in force. Section 76 is similarly treated in Okerlind v. Fyke, 90 Ill. App. 192 (1900); Simpson v. Sligar, 239 Ill. App. 484 (1926); Chicago Stamping Co. v. Danly, 85 Ill. App. 322 (1899); Schmitt v. Edward Hines Lumber Co., 124 Ill. App. 319 (1906); Couch v. Illinois Cent. R. Co., 213 Ill. App. 429 (1919); Fisher v. Pennsylvania Co., 118 Ill. App. 662 (1905).\nIn the construction of statutes, from the time of the holding in Phoebe, a woman of color, v. Jay, 1 Ill. (Breese) 268 (Third Ed., p. 207) the rule, as expressed in that opinion is \u201cthat the sense which the contemporaneous members of the profession had put upon them is deemed of some importance according to the maxim that contempornea espositio est fortissima in lege (quoted from 1 Kent\u2019s Com. 434) has been followed. In Comstock v. Cover, 35 Ill. 470, 478, the court said in the opinion: \u201cThe doctrine is, where a statute uses language of doubtful import, acting under it for a long course of years in one way, may well give an interpretation to that obscure meaning, \u2022 and reduce that uncertainty to a fixed rule\u00bb\u201d See also People v. Fidelity & Casualty Co., 153 Ill. 25 and Nye v. Foreman, 215 Ill. 285. In our opinion, applying this rule, sec. 69, of the-Act of 1872 must be held as still in force.\nThe trial court therefore erred in granting appel-. lee\u2019s motion to dismiss the appeal, and should have granted appellant\u2019s motion for leave to file an amended bond within a reasonable time to be fixed by the court.\nThe order dismissing the appeal is reversed and the cause is remanded with directions to proceed in accordance with the views expressed in this opinion.\nReversed and remanded.", "type": "majority", "author": "Mr. Presiding Justice Dove" } ], "attorneys": [ "Harold R. Nettles, of Freeport, for appellant.", "Hunter & Hunter, of Freeport, for appellee." ], "corrections": "", "head_matter": "H. H. Antrim, Appellant, v. Guyer and Calkins Company, Appellee.\nGen. No. 9,998.\nOpinion filed February 8, 1945.\nReleased for publication February 26, 1945.\nHarold R. Nettles, of Freeport, for appellant.\nHunter & Hunter, of Freeport, for appellee.\nSee Callaghan\u2019s Illinois Digest, same topic and section number." }, "file_name": "0641-01", "first_page_order": 663, "last_page_order": 670 }