Hawes v. People ex rel. Pulver

Citation129 Ill. 123,21 N.E. 777
PartiesHAWES, Judge, v. PEOPLE ex rel. PULVER.
Decision Date15 June 1889
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Petition by Emilie Pulver for a writ of mandamus against Kirk Hawes, judge of the superior court of Cook county. Respondent appeals.

Moses & Newman, for appellant.

Kraus, Mayer & Stein, for appellee.

SHOPE, C. J.

This was a petition in the appellate court for the First district, praying for a mandamus against the respondent, Kirk Hawes, as judge of the superior court of Cook county, to compel him, as judge of said court, to sign and seal a bill of exceptions in a suit lately pending and determined in said court before him, wherein Emilie Pulver, the relator, was plaintiff, and against the Rochester German Insurance Company. At a former term of this court a like petition was heard, upon appeal from the appellate court, and we there held that the appellate court was without power to award the writ of mandamus, except in furtherance of its appellate jurisdiction; and that, as no appeal had been taken or writ of error prosecuted to the superior court to reverse the original judgment, there was no authority to issue the writ, and the order of the appellate court awarding the writ was reversed. Subsequently a writ of error was sued out of the appellate court by the relator to review said judgment of the superior court. A transcript of the record was filed therein, and a scire facias was issued, and served upon the defendant in error. Thereupon the present petition was filed, being in all essential particulars identical with the one first filed. Upon hearing the appellate court awarded the writ, as being in furtherance of its appellate jurisdiction, and necessary to the hearing and determination of the cause in that court, as it clearly had the power to do if otherwise warranted. Hawes v. People, 20 Leg. News, 306.

We have carefully examined the record, and considered the arguments of counsel, and are of opinion that the respondent, as judge of said superior court, was not only authorized, but required by law, after having settled as he did the bill of exceptions tendered, to sign and seal the same. No good purpose can be subserved by a rediscussion of the facts or principles involved, as we are entirely satisfied with the reasoning of the appellate court in its opinion filed upon consideration of the case made by the petition first presented, which is as follows:

‘BAILEY, J. This is an original proceeding in this court by mandamus, to compel the respondent, one of the judges of the superior court, to sign and seal a bill of exceptions in a certain suit lately pending before him in said court. The facts, as shown by the petition, answer, and affidavits, so far as we deem them material, are substantially as follows: On the 22d day of March, 1887, there was pending and undetermined in said court an action of assumpsit brought by Emilie Pulver, the relator, against the Rochester German Insurance Company, to recover her loss and damage by fire to certain personal property covered by a policy of insurance issued to her by said company. The trial of said cause was entered upon on the 22d day of March, 1887, and concluded on the 29th day of the same month, the verdict of the jury being in favor of said company. On the 9th day of April, 1887, the relator's motion for a new trial was overruled, and on the same day judgment was rendered by the court, the respondent presiding, against the relator for costs. The relator thereupon prayed an appeal to this court, which was allowed on her filing her appeal-bond in the sum of $300, to be approved by the court, together with her bill of exceptions, within sixty days from that date. On the 1st day of June, 1887, a stipulation in writing was entered into and signed by the attorneys of the insurance company and the relator, for and on behalf of their respective clients, by which it was agreed that the time of filing said bill of exceptions should be extended for the period of thirty days from and after the time originally limited by said court for the filing of the same, and on the same day, it being one of the days of the May term, 1887, of said court, an order was entered in said court in said cause in the following words: ‘On the stipulation of the parties hereto, it is ordered that the time of filing the appeal-bond and bill of exceptions herein be, and is hereby, extended until the 9th day of July next.’ On the 22d day of June, 1887, the relator's attorney, having completed his draft of the bill of exceptions, presented it to the respondent, and requested him to sign it, and the respondent thereupon took the bill, and wrote thereon as follows: ‘Presented for signature, June 22, 1887. HAWES.’ The respondent then directed that the bill be delivered to the attorney of the insurance company for examination, which was done. Various circumstances, which we do not deem it material to notice, prevented a meeting of said attorneys before the respondent to settle the bill of exceptions until some time in October, 1887, when all proposed amendments to said bill were passed upon and settled by the respondent; but, being in doubt as to his power to sign the bill at that time, he took that question under advisement until November 3, 1887, on which day he decided that he had no power to sign said bill, and refused so to do.

‘If the respondent had power to sign the bill of exceptions when it was presented to him on the 22d day of June, he should be required to sign it now. The rule is that, where a party presents his bill of exceptions to the judge who tried the cause for his signature within the time prescribed for filing the same, he, having thus done all he can, will not be prejudiced by the neglect or refusal of the judge to sign the bill until after the time fixed for that purpose has expired. Underwood v. Hossack, 40 Ill. 98;Magill v. Brown, 98 Ill. 235;Village of Hyde Park v. Dunham, 85 Ill. 569;Hake v. Strubel, 121 Ill. 321, 12 N. E. Rep. 676. The time limited by the court for filing the bill of exceptions, at the time of entering judgment and granting the prayer for an appeal, expired on the 8th day of June; but before the expiration of that period, though at a subsequent term by an order entered in term-time, by express stipulation of the parties, the time was extended 30 days, and within the time as thus extended the bill of exceptions was presented to the respondent for his signature. The theory upon which his power to sign the bill on the 22d of June is denied is that, at the adjournment of the term at which the final judgment was rendered, the record in the case was closed, and was no longer within the power of the court. It may be conceded that in theory, at least, the record was closed at the expiration of the term, but that theory, so far as it relates to the bill of exceptions, is complied with by an enforcement of the rule of practice which requires that bills of exceptions, though in fact signed and sealed long after the term, should purport on their face to...

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    • 17 Febrero 1915
    ...until after the time fixed for that purpose has expired. Underwood v. Hossack, 40 Ill. 98;Magill v. Brown, 98 Ill. 235;Hawes v. People, 129 Ill. 123, 21 N. E. 777;Hall v. Royal Neighbors, 231 Ill. 185, 83 N. E. 145;Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62, 96, N. E. 1019, Ann. Cas......
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