Ennis v. Ennis

• Decision Date: 19 May 1884
• Citation: 1884 WL 9847,110 Ill. 78
• Parties: MARGARET ENNISv.LAWRENCE M. ENNIS.
• Court: Illinois Supreme Court

110 Ill. 78

1884 WL 9847 (Ill.)

MARGARET ENNIS

v.LAWRENCE M. ENNIS.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. M. A. RORKE & SON, for the plaintiff in error:

The rights of the parties are to be determined upon an inspection of the record contained in the return to the writ, and not on a mere motion to quash the writ and to dismiss the petition made by a person who is merely named in the petition for the writ, and to whom the writ of certiorari was not directed. McManus v. McDonough et al. 4 Bradw. 180; Savage v. Board of Commissioners, 10 Id. 204; Donahue v. Will County, 100 Ill. 94.

In a proceeding of this kind it is erroneous to render a judgment for costs. Arnold v. Thorpe, 9 Bradw. 357; Smith v. McLaughlin, 77 Ill. 596.

It is now the settled rule of law in this State that the common law writ of certiorari lies in two classes of cases: First, whenever it is shown that the inferior court or jurisdiction has exceeded its jurisdiction; and second, whenever it is shown that the inferior court or jurisdiction has proceeded illegally, and no appeal or writ of error will lie. Hyslop et al. v. Finch, 99 Ill. 171; Savage v. Board of Commissioners, 10 Bradw. 204; Porter v. Board of Trustees, Id. 343; People v. Wilkinson, 13 Ill. 660; Gerdes v. Champion, 108 Id. 137. The orders in question were not merely illegally or irregularly entered, but under the authority of the cases of Miller v. Miller, 82 Ill. 463, Marshall v. Rose, 86 Id. 374, and the statute relating to administration of estates, (Hurd's Stat. 1881, pp. 112, 113,) there was an entire want of power in the probate court, ab initio, to enter the orders sought to be quashed by appellant. Hence, as the probate court exceeded its power or jurisdiction, the writ lies, whether appellant could have taken an appeal from those orders of the probate court or not. Hyslop v. Finch, 99 Ill. 184; Monroe v. People, 102 Id. 406.

And where nothing has been done upon the assumed validity of the orders in question, and less than “five years” or “three years” have intervened between the entry of the orders sought to be quashed and the filing of the petition for the writ, a certiorari at common law will lie. Hyslop v. Finch, 99 Ill. 171; Miller v. Trustees, 88 Id. 26.

Messrs. ENNIS & WALKER, for the defendant in error:

As to when a writ of certiorari at common law will lie, see Waite's Practice on Common Law Certiorari; People v. Hill, 53 N. Y. (8 Sick.) 547; People v. Andrews, 52 Id. (7 Sick.) 445; People v. Stillwell, 19 Id. (5 Smith,) 531; Trustees v. School Directors, 88 Ill. 100; Otten v. Lehr, 68 Id. 64; Chicago and Rock Island R. R. Co. v. Fell, 22 Id. 333.

If the court, upon a hearing, is satisfied that the writ was improvidently issued, or that justice and equity so require, it will dismiss the writ. Curtis v. Common Council of Utica, 45 How. 289; People v. Mayor of New York, 2 Hill, 9; Same v. Same, 5 Barb. 43.

A common law writ of certiorari can issue to the inferior tribunals and jurisdictions when they exceed their jurisdiction, and in case where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. Hyslop v. Finch, 99 Ill. 171; People v. Williamson, 13 Id. 160; Miller v. Trustees of Schools, 88 Id. 26.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The petition in this case was presented by Margaret Ennis in the circuit court, and was for a common law writ of certiorari, to bring before that court certain proceedings had in the probate court of Cook county, that the same, on inspection, might be quashed and held for naught. It appears from the allegations it contains, that petitioner was lawfully married to James Ennis, since deceased, who at the time of his death left him surviving petitioner, his widow, and nine children by a former marriage, and one child by his marriage with petitioner, all of whom were minors at the time of his death, except, perhaps, one or two of his first children, and who resided with him and constituted a part of his family; that afterwards such proceedings were had in the probate court that letters of administration were granted to petitioner and Lawrence M. Ennis, and on appraisers being appointed, as the law directs, they set apart the “widow's award,” in value $1960. The grievance alleged is, that subsequently, on the 3d day of June, 1881, the probate court “divided” or ““apportioned” the “widow's award,” giving to petitioner and her child by her marriage with James Ennis, since deceased, $750, and to the seven minor heirs of her deceased husband by his former marriage, $1210. It is that order of the probate court so entered that petitioner seeks to have quashed and held for naught in this proceeding. It is thought this can not be done on a common law writ of certiorari. The proper remedy for a...