#### Patrick J. Casey v. Charles E. Curtis.

Practice.

1. A refusal to quash a capias is not a final order, and can not be appealed from.

*2372. Where a defendant m an action before a justice was not served with process, and knew nothing of the proceeding until after judgment, the justice had no jurisdiction to render the same, and it was of no effect.

[Opinion filed July 23, 1891.]

Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.

Mr. F. S. Baird, for appellant.

Mr. Frederick Arnd, for appellee.

Waterman, J.

In this case, judgment against appellant was entered by confession, upon a note and warrant of attorney, more than a year and a day old.

Appellant moved to set the same aside, alleging that the note was given to obtain the discharge of his property irom a claim thereon existing under an execution sale upon a judgment rendered by a justice of the peace against him (appellant), in a suit m which he was never served with process and knew nothing of until demand of payment was made under the execution.

Appellant was not, as is insisted, compelled to give this note; he gave it, as his affidavit shows, in settlement of a claim upon which a judgment that was a nullity had been rendered. In ract there was against him only a claim, for if he was never served with process and knew nothing oi the proceeding until after judgment, the justice court had no jurisdiction to render the judgment and it was of no effect.

The motion to set aside the judgment was properly overruled.

A capias had been issued upon the judgment entered in the Superior Court, and this, appellant moved to have quashed. The court refused to quash the writ but stayed the execution thereof. Ho appeal lies from such an order.

A refusal to quash a capias is not a final order. Appellant had not been arrested and he can not be under this writ, as it has long since expired by lapse of time.

The judgment of the Superior Court is therefore affirmed, *238and the appeal from its order refusing to quash the writ of capias ad satisfaciendum and staying the execution thereof, is dismissed.

Judgment affirmed and appeal from orders refusing to quash writ and staying execution, dismissed.

Judgment affirmed and appeal from order dismissed.