Ex parte McKenzie

Citation44 N.E. 413,162 Ill. 48
PartiesEx parte McKENZIE et al.
Decision Date09 May 1896
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Petition in original proceeding by George M. McKenzie and others to annul and expunge opinions in two cases of Burdick v. People. Dismissed.

Magruder, Phillips, and Carter, JJ., dissenting.

Richard Prendergast, for petitioners.

M. S. Rosenthal and W. S. Forrest, pro se.

S. P. Shope, for the People.

BAKER, J.

One George Burdick was convicted in the Jackson circuit court upon two indictments for selling railroad tickets in violation of the act of the legislature, approved April 19, 1875, entitled ‘An act to prevent frauds upon travelers, and owner or owners of any railroad, steamboat or other conveyance for the transportation of passengers.’ 2 Starr & C. Ann. St. p. 1951. Upon each indictment a judgment was rendered against him for a fine of $500. He thereupon sued out writs of error, and brought the two cases to this court. The judgments were here affirmed. The cases are reported as Burdick v. People, 149 Ill. 600, 36 N. E. 948; and Id., 149 Ill. 611, 36 N. E. 952. At a subsequent term of the court, George M. McKenzie, Levi Solomon, A. J. Geis, S. A. Fishel, E. J. Hunter, and Edward List, as amici curiae, presented to this court the petition now before us, and asked that we should strike out, annul, and expunge from the record and reports of the court the opinion and judgments in said cases of George Burdick v. People, for the alleged reason that said causes were fictitious and collusive, and that said opinions and judgments were obtained by collusion and by fraud practiced on this court. Along with the petition, numerous affidavits were filed which tended to prove the truth of the statements made in said petition. Thereupon, a rule was entered, returnable to the then next term of the court, requiring the attorneys of record both for the plaintiff in error and for the defendant in error in said two cases of Burdick v. People, and other persons named in the aforesaid petition as being parties to the alleged collusion, to show cause why, if any, the opinion and judgments in question should not be stricken out, annulled, and expunged from the record and reports of the court. Answers and returns to said rule were made by the several persons against whom the rule was entered, and the answers and returns were duly sworn to, and were in denial of the charges made, and were accompanied by affidavits of other persons tending to support such denials. In the view we have taken of the matter, it will not be necessary for us to weigh the testimony found in the petition and in the answers thereto, and in the affidavits filed with said petition and said answers, respectively, for the purpose of determining whether or not the prosecutions against George Burdick were fictitious and collusive. Upon what footing do the petitioners stand before the court? They appear as amici curiae. They say that they are engaged in the business of ticket brokerage, and also that two of them (George M. McKenzie and Levi Solomon) appear on behalf of the American Ticket Brokers' Association, and two of them (A. J. Geis and S. A. Fishel) on behalf of the Guarantee Ticket Brokers' Association, and three of them (Levi Solomon, E. J. Hunter, and Edward List) on behalf of the Chicago Ticket Brokers' Local Association. They do not show that any indictment is pending against them, or either of them, or any member of either of said ticket brokers' associations, for a violation of the statute that was involved in the decision made in the Burdick Cases. And what was the status of said Burdick Cases at the time they presented their petition to the court? The judgments that had been rendered against Burdick in the circuit court upon the two indictments against him had many months before been affirmed by the final judgments and decisions of this court, and the time limited for filing petitions for rehearings long since expired, and the opinion of this court in said cases published in the official reports of the court; and, moreover, the amounts due upon said judgments had been fully paid to the officer of the law authorized to receive the same; and, besides this, not only the term of the court in the Southern grand division, as of which these final judgments were entered, had expired, but the next succeeding term of the court in said grand division had ended fully six months prior to the presentation of the petition to vacate said judgments. Do the petitioners stand in such attitude as will authorize the court, upon their motion, to expunge from the record and from the Reports of the court the said judgments and the opinions rendered in deciding them?

It goes without saying that to present a fictitious case to the court for the purpose of obtaining its opinion, or for other fraudulent purpose, is a contempt of its authority and dignity, and the court will, in such case, under all proper circumstances, protect itself and litigants, and the rights of third parties, by the imposition of penalties for the contempt, and by the dismissal of the fictitious suit, or the appeal or writ of error therein, and even by setting aside or affording relief against a collusive and fraudulent judgment, either at or after the term at which it is entered. It is settled law that, while a collusive or fraudulent suit is still pending, the court will, at the suggestion of either a party to the record, or a person in interest, or who may be prejudiced by the judgment, or even at the instance of a stranger who appears as amicus curiae, or upon its own motion, dismiss such suit out of court. In re Elsam, 3 Barn. & C. 597; Coxe v. Phillips, Cas. t. Hardw. 237; Brewster v. Kitchin, Comb. 424; Smith v. Brown, 3 Tex. 360. And the same rule applies where the false and fictitious case is pending in a court of review on appeal or writ of error; and such appeal or writ of error will be dismissed. Lord v. Veazie, 8 How. 251;Bartemeyer v. Iowa, 18 Wall. 129. And the rule that is applicable where both parties collude to get up a case for the opinion of the court is applicable to a case where one of the parties becomes owner of the whole opposing interest, and sole party in interest, and is dominus litis on both sides. Cleveland v. Chamberlain, 1 Black, 419; Paper Co. v. Heft, 131 U. S. Append. xcii.; Paper Co. v. Heft, 8 Wall. 333;Dakota Co. v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428. And such rule remains in force during the time allowed for ordering a rehearing, and while the case is pending on rehearing. In Smith v. Railway Co., 29 Ind. 546, an opinion had been filed deciding the questions raised on the appeal. But the court, upon a petition filed by one James Smith, who was supposed to be the appellant, and by one Kent, supported by affidavits, entered an order granting a rehearing, and ruling the appellee to show cause why the appeal should not be dismissed. It was then made to appear that the suit was fictitious, and that there was no real controversy between the parties to it,-in fact, that the suit was a mere fiction, and intended to affect a real litigation then pending between said Kent and the railroad company. The appeal was thereupon dismissed at the cost of the appellee. In this state, the general rule is that, after the adjournment of the term at which a judgment is rendered, a court at a subsequent term has no discretion or authority to set aside such judgment. Cook v. Wood, 24 Ill. 295;Humphreyville v. Culver, 73 Ill. 486;Goucher v. Patterson, 94 Ill. 527. In Cook v. Wood it was said that, after the term has expired, application should be made to a court of equity for any relief against the judgment as having been obtained by fraud. In 1 Freeman on Judgments (section 99) it is said: ‘The maxim that fraud vitiates everything is applicable to judgments. Whether the maxim is to be given effect on motions to vacate them is more doubtful. In many instances judgments have been vacated for fraud in their procurement upon motions made after the lapse of the term at which they were entered, but we judge the safer practice is to require relief to be sought by suits in equity.’

But, in the view we take of the case before us, it is immaterial whether the power to set aside a judgment for fraud or collusion is a common-law power, inherent in all courts of record, and that is proper to be exercised after the expiration of the term at which the judgment was rendered, or whether the rule is that, after such term has gone by, the judgment can be vacated or relieved against only by a suit in equity. We understand the doctrine to be that the person making application, whether by motion or by bill in chancery, to set aside a judgment after the end of the term in which it was obtained, must either be a party to such judgment, or in privity with such party, or be possessed of rights or equities which are directly and injuriously affected by the judgment. There are many cases where the court, at a term subsequent to that at which a judgment or decree was rendered, has interposed to set aside such judgment or decree for either fraud or collusion; but we known of none in which such action has been taken where the party applying for such relief has not been within one or the other of the abovementioned classes of persons. To permit strangers whose rights or interest are not directly and injuriously affected by the judgments or decrees to overturn adjudications to which the parties and those in privity with them make no objections would encourage litigation and disturb the peace of society. In Kemp v. Cook, 18 Md. 130, the party moving to strike out the judgment was a defendant against whom said judgment had been recovered. Taylor v. Sindall, 34 Md. 38, and Dial v. Farrow, 36 Am. Dec. 267, and 1 McMul. 292, were cases of like character. In Edson v. Edson, 108 Mass. 590, as well as in Allen v. Maclellan, 12 Pa. St. 328, the complaining party was the defendant against whom a fraudulent divorce had...

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