{
  "id": 2476284,
  "name": "Alden Harlan, appellant, v. Nancy Scott, appellee",
  "name_abbreviation": "Harlan v. Scott",
  "decision_date": "1839-12",
  "docket_number": "",
  "first_page": "65",
  "last_page": "67",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Scam. 65"
    },
    {
      "type": "official",
      "cite": "3 Ill. 65"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "1 Scam. 321",
      "category": "reporters:state",
      "reporter": "Scam.",
      "case_ids": [
        2479498
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/2/0321-01"
      ]
    }
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  "last_updated": "2023-07-14T20:58:58.619010+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Alden Harlan, appellant, v. Nancy Scott, appellee."
    ],
    "opinions": [
      {
        "text": "Lockwood, Justice,\ndelivered the opinion of the Court:\nThis was originally an action for forcible detainer commenced by Scott against Harlan, before a justice of the peace, and brought by appeal into the Circuit Court of St. Clair county.\nThe appeal was, on motion of Scott\u2019s attorney, dismissed because no sufficient appeal bond had been filed by Harlan ; and the Court below further ordered that a writ of restitution be issued. It also appears that a cross motion was made by the appellant\u2019s counsel, to allow him to amend the appeal bond, which motion to amend was overruled by the Court.\nThe assignment of errors questions the correctness of the decisions below in overruling the appellant\u2019s motion to amend, and in ordering a writ of restitution.\nThe statute of forcible entry and detainer, although it authorizes appeals to the Circuit Court, makes no provision in case the bond be defective, to amend it or for filing a new bond. In the case of Crain v. Bailey et al., decided at December term, 1836, this Court held that \u201c as the statute makes no provision for amending the bond, or filing a new bond, the application to do so was necessarily addressed to the discretion of the Court; and the rule is well settled, that error cannot be assigned for the refusal of a bond to grant a motion addressed to its discretion.\u201d Whether the Circuit Court might not have permitted the appellant to file a new bond, is a question we are not called on to decide.\nThere is a striking incongruity in dismissing an appeal, and at the same time ordering that a writ of restitution should issue. It would doubtless have been more conformable to precedent and technical accuracy, on dismissing the appeal for irregularity, to have awarded a procedendo to the justice of the peace ; but this informality cannot in the least degree injure the appellant. Had a procedendo been ordered, the justice would have issued the writ of restitution, and the appellant would have been turned out of possession ; and that was all that could be done under the writ from the Circuit Court.\nThe language of the 5th section of the statute in relation to forcible entry and detainer, may justify the order to .issue the writ. It is as follows : \u201c The Circuit Court, on giving judgment for the plaintiff, shall award a writ of restitution and execution for costs.\u201d The legislature doubtless meant to authorize the Circuit Court to award the writ of restitution, where the Court gave judgment for the plaintiff, on the hearing of the cause on the merits; yet the dismissal of the appeal was a judgment for the plaintiff, and the award of the writ, under the circumstances, is justified by the act.\nThe Court are consequently of the opinion that this informality, as it cannot prejudice the party, and is authorized by the letter of the statute, cannot be assigned for error.\nThe judgment of the Circuit Court is therefore affirmed with costs.\nJudgment affirmed.\n1 Scam. 321.\nR. L. 312-13; Gale\u2019s Stat. 314.",
        "type": "majority",
        "author": "Lockwood, Justice,"
      }
    ],
    "attorneys": [
      "J. Shields, for the appellant.",
      "L. Trumbull, for the appellee,"
    ],
    "corrections": "",
    "head_matter": "Alden Harlan, appellant, v. Nancy Scott, appellee.\nAppeal from, St. Clair.\nA motion to amend a bond on an appeal from a justice of the peace, in a case of forcible detainer, is addressed to the sound discretion of the Court, and its decision cannot be assigned for error.\nThe awarding of a writ of restitution upon the dismissal of an appeal, in a case of forcible detainer, is not error.\nThe proceedings in this cause were had in the Court below, at the August term, 1839, before the Hon. Sidney Breese.\nJ. Shields, for the appellant.\nL. Trumbull, for the appellee,\ncited Acts of 1837, 120 ; Gale\u2019s Stat. 314 ; Forman 226, 241 ; Breese 264."
  },
  "file_name": "0065-01",
  "first_page_order": 83,
  "last_page_order": 85
}