Smyth v. Fargo

Citation138 N.E. 610,307 Ill. 300
Decision Date06 April 1923
Docket NumberNo. 14967.,14967.
PartiesSMYTH v. FARGO et al.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Error to First Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; S. C. Stough, Judge.

Action by Hugh P. Smyth, administrator, against Charles E. Fargo and another. From a judgment of the Appellate Court (225 Ill. App. 660) affirming a judgment and order of the superior court, defendants bring certiorari.

Judgment affirmed.

Cartwright, J., dissenting.Jay Fred Reeve, Bernard W. Vinissky, and Emmet Trainor, all of Chicago, for plaintiffs in error.

C. Helmer Johnson, of Chicago (Arthur H. Chetlain, of Chicago, of counsel), for defendant in error.

FARMER, J.

This court granted the prayer of the petition for certiorari of plaintiffs in error to bring up for review a judgment of the Appellate Court affirming a judgment and order of the superior court vacating and setting aside a judgment dismissing the case for want of prosecution.

Hugh P. Smyth, administrator of the estate of Francis McNerney, deceased, brought suit against Charles E. Fargo and Louise B. Fargo to recover damages for the death of McNerney, alleged to have been caused by the negligent operation of an automobile by defendants. Defendants filed pleas to the declaration. The case was placed on call for trial before Judge Cooper December 1, 1920. Its title as printed on the calendar of the trial court and on the judge's docket of trial call cases was, ‘Smuth, Adm'r, v. Fargo et al.’ When it was called for trial neither party to the suit answered, and an order was entered dismissing the suit for want of prosecution. March 5, 1921, upon leave granted, defendant in error filed a motion, supported by affidavits, to set aside the order dismissing the case for want of prosecution and to reinstate it. The motion, in substance, alleged the plaintiff had a meritorious cause of action; that the judgment dismissing the case was inadvertently and improperly entered without fault of plaintiff; that through misprision of the clerk in preparing the printed calendar and misprision of Judge Cooper's minute clerk in posting the trial call November 30, 1920, of cases for trial December 1, 1920, the case was wrongfully entitled Smuth, Adm'r, v. Fargo et al., and plaintiff had no information his case was on the trial call or was subject to trial December 1; that the judgment dismissing the case was entered through an error of fact through the misprision of the clerk. The motion alleged the misprision of the clerk in entitling the case Smuth, Adm'r, v. Fargo et al., caused the court to believe the cause was properly called for trial in due course, and the fact was unknown to the court that the case on trial call was Smyth, Adm'r, v. Fargo et al., and that if the court had known of the error, he would not have dismissed the case.

By a rule of the superior court, cases are called for trial in their order on the calendar, and the call for each day is announced before the adjournment of the court the preceding day. The motion was supported by the affidavit of C. Helmer Johnson, one of plaintiff's attorneys, and the affidavit of a clerk in his office, that they were diligent in consulting the printed calendar and trial call, but because the case was wrongly on both as Smuth, Adm'r, v. Fargo et al., they did not recognize it and identify it as Smyth, Adm'r, v. Fargo et al., and they therefore were unaware it was on the call for trial December 1. Defendants were ruled to plead or demur to the motion within 15 days. The defendants filed what they call an answer, denying the judgment of dismissal was inadvertently and improperly entered, or that the clerk of the court or Judge Cooper's minute clerk was guilty of any misprision in preparing the calendar or postingthe trial call. They denied that the suit was dismissed through an error in fact, but alleged that it was dismissed through the negligence of plaintiff's attorneys, and the court is now without jurisdicton to set aside the judgment. The defendants also filed the affidavit of one of their attorneys, showing how cases in the courts of Cook county are assigned to the judges, calendars printed and distributed showing to which of the judges the cases are assigned and how they are placed on the trial call, and alleging, if plaintiff's attorneys had exercised diligence they would have known the case was on the call for trial in Judge Cooper's court on December 1, 1920. The court, Judge Stough presiding, set aside the order and judgment dismissing the case and reinstated it. Defendants excepted to the judgment, and prosecuted an appeal to the Appellate Court. The judgment was there affirmed, and this court granted a writ of certiorari, on the petition of defendants, to review the judgment.

The proceeding to set aside the judgment of dismissal is based on the authority of section 89 of the Practice Act (Hurd's Rev. St. 1921, c. 110). That section abolishes the writ of error coram nobis, and provides that--

‘All errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.’

The parties will hereafter be referred to as plaintiffs in error and defendant in error.

Defendant in error insists the record here shows plaintiffs in error have ot preserved for our...

To continue reading

Request your trial
17 cases
  • People v. Vara
    • United States
    • Supreme Court of Illinois
    • June 1, 2018
    ...Ill. 525, 533, 112 N.E.2d 113 (1953) (citing People ex rel. Waite v. Bristow , 391 Ill. 101, 62 N.E.2d 545 (1945), and Smyth v. Fargo , 307 Ill. 300, 138 N.E. 610 (1923) ). ¶ 14 In a criminal case, the final judgment is the sentence. People v. Allen , 71 Ill. 2d 378, 381, 16 Ill.Dec. 941, 3......
  • People v. Vincent, 101477.
    • United States
    • Supreme Court of Illinois
    • June 7, 2007
    ......v. Silverman, 28 Ill.App.3d 289, 291, 328 N.E.2d 205 (1975); see Smyth v. Fargo, 307 Ill. 300, 305, 138 N.E. 610 (1923) (stating principle for complaints generally). On appeal, any claim of insufficiency will be deemed ......
  • Scott v. Dreis & Krump Mfg. Co.
    • United States
    • United States Appellate Court of Illinois
    • March 11, 1975
    ...a judgment had been a basic concept recognized since the common law. (See The Governor v. Dodd (1876), 81 Ill. 162; Smyth v. Fargo (1923), 307 Ill. 300, 306, 138 N.E. 610.) In fact the clerks of court for many years have been held liable to any party suffering injury thereby for any failure......
  • Young's Estate, In re
    • United States
    • Supreme Court of Illinois
    • March 23, 1953
    ...... People ex rel. Waite v. Bristow, 391 Ill. 101, 62 N.E.2d 545; Smyth v. Fargo, 307 Ill. 300, 138 N.E. 610; Moore v. Shook, 276 Ill. 47, 114 N.E. 592. Moreover, it has several times been pointed out that the judgment ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT