Opinion of the Coubt,
Gary, P. J.The appellee, by a complaint in writing, stating all the details upon which a summons, nearly as explicit, was issued, sued the appellant before a justice of the peace for a penalty incurred by the appellant, under Sec. 35 of “ An act in relation to fencing and operating railroads,” approved Harch 31,1874, by neglecting to place a flagman at a street crossing.
The judgment of the justice recites that the appellant was found guilty in manner and form as charged in the complaint entered and filed in this cause, “ Whereupon it is considered by the court that said plaintiff (appellee here) have and recover of the said defendant (appellant here) the sum of two hundred dollars as a fine,” etc.
From that judgment the appellant appealed to the Circuit Court, where the appeal was dismissed on the ground that the appeal should have been taken to the Criminal Court of Cook County, under section 26, article 6, of the constitution.
The transcript and papers transmitted by the justice to the Circuit Court, show the character of the case.
“ The law designed that the proceedings in the Circuit Court should be based upon the transcript. It supplies the place of a declaration in original suits at law, in courts of record, where written pleadings are had.” Reid v. Driscoll 84 Ill. 96.
Here the transcript by reference incorporated the complaint, so that whether a written complaint was necessary, as in actions for forcible detainer, or not, it is in this case a part of the transcript. It is true that it makes no difference what name a justice gives to an action before him; it is, on appeal, to be what the evidence fits. But the same cause of action must be prosecuted on appeal as was sued upon before the justice, unless leave to add, by amendment, has been obtained.
The case, then, is of the character called quasi criminal, of which the Criminal Court has jurisdiction on appeal. Tully v. Town of Northfield, 6 Brad. 356.
Then, as section 26, article 6, of the constitution, requires that all appeals taken in Cook county, in quasi criminal cases, shall be taken to the Criminal Court, it follows that they can not be taken elsewhere, and the Circuit Court rightly dismissed this one. An appeal in any case, at law, is a matter of positive law; and it lies only as is provided by law. In the matter of Storey, 120 Ill. 244, cases collected at page 252.
This view does not conflict with Berkowitz v. Lester, 121 Ill. 99.
The Circuit Court may have jurisdiction of the class of cases known as quasi criminal, and entertain an original suit of that class, commenced there, and yet appeals in cases of that class, commenced in a justice court, may be denied altogether or directed elsewhere.
The judgment of the Circuit Court is affirmed.