Blackburn v. Bell

• Decision Date: 31 January 1879
• Citation: 91 Ill. 434,1879 WL 8422
• Parties: DAVID S. BLACKBURN et al.v.SARAH J. BELL.
• Court: Illinois Supreme Court

91 Ill. 434

1879 WL 8422 (Ill.)

DAVID S. BLACKBURN et al.

v.SARAH J. BELL.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court of the Third District; the Hon. C. L. HIGBEE, Presiding Justice, and the Hon. O. L. DAVIS, and Hon. LYMAN LACEY, Justices.

Mr. ANTHONY THORNTON, for the appellants.

Mr. R. N. BISHOP, and Mr. J. B. MANN, for the appellee.

Mr. JUSTICE BAKER delivered the opinion of the Court:

An action of assumpsit was commenced in the Edgar county circuit court, by Sarah Jane Mann, now Sarah Jane Bell, against David S. Blackburn, and the venue in said cause was afterwards changed to the Vermilion circuit court. At the regular February term, 1875, of the latter court, said suit was pending therein for trial; and in said cause, upon the records of said court for said term, appears the following judgment, which is entered as of the “30th day of February Term, 1875, March 6, 1875:”

“And now again come the parties hereto, by their respective attorneys, and the court having heard argument of attorneys herein on motions for a new trial and in arrest of judgment in vacation, and an agreement of the parties having been filed in this cause that the decision of the court on said motions should be entered of record as of the February term A. D. 1875, aforesaid, and now upon due consideration, the court being fully informed in the premises, said motions for new trial and in arrest of judgment are overruled.

It is, therefore, ordered by the court, that the said plaintiff have and recover of and from the defendant David S. Blackburn said sum of $15,000 damages found by the jury aforesaid, together with the costs by her in her cause herein expended, with legal interest thereon from the 30th day of the February term A. D. 1875, to-wit, March 6th, 1875, and may have execution therefor against said defendant.

Whereupon the defendant prays an appeal, which is granted by the court on defendant filing bond in the sum of $30,000, with security to be approved by the clerk of this court, by agreement, and by agreement of parties said bond to be filed within thirty days from July 9th, 1875, and bill of exceptions by agreement to be filed within ninety days from said day.”

A copy of said judgment is filed with the bill of complaint hereinafter mentioned, as “exhibit A,” and is the only portion of the record, or what purports to be the record in said action of assumpsit, that is set forth in or filed with said bill; the preceding orders, showing the submission of the case, trial by and verdict of the jury, and entry of motions for a new trial and in arrest of judgment, being wholly omitted in the record now before us.

From this judgment, so appearing of record in the Vermilion circuit court, the appellant David S. Blackburn perfected an appeal to this court, by giving bond within the time limited in and by the foregoing order, in the sum of $30,000, with the co-appellants as securities; which said appeal bond was duly approved by writings indorsed thereon both by the clerk of the Vermilion circuit court and by the Hon. O. L. DAVIS, judge of said court. The condition of said bond, a copy of which is filed with the bill of complaint hereinafter mentioned, as an exhibit, and prayed to be taken as a part of said bill, was as follows:

“The condition of the above obligation is such, that, whereas the said Sarah Jane Mann did, on the 6th day of March, 1875, at a term of circuit court then being holden within and for the county of Vermilion, and State of Illinois, obtain a judgment against the above bounden David S. Blackburn, for the sum of $15,000.00, and costs of suit, from which judgment the said David S. Blackburn has prayed for and obtained an appeal to the Supreme Court of said State:

Now, if the said David S. Blackburn shall duly prosecute said appeal, and shall, moreover, pay the amount of the said judgment, costs, interest and damages rendered and to be rendered against him, the said David S. Blackburn, in case the said judgment shall be affirmed in the said Supreme Court, then the above obligation to be null and void, otherwise to remain in full force and virtue.”

The said judgment, so appealed to this court, was affirmed by us at the January Term, 1877, and a petition for a rehearing was considered and denied at the January term, 1878, and the case is reported in 85 Ill. 222. In the record then filed in this court, as is shown by the bill of complaint now under consideration, there was nothing to indicate otherwise than that the case had been duly tried and the judgment rendered by the legally elected and commissioned judge of the Vermilion circuit court. No point or suggestion to the contrary was made, either in the motion entered for a new trial or in the motion in arrest of judgment, or upon the appeal to this court, or in the petition for a rehearing.

Said judgment having been affirmed by this court and remaining unpaid, the plaintiff in the original suit, who had meantime intermarried with one Bell, brought an action on the appeal bond, in the Edgar circuit court, to the March term, 1878; whereupon Blackburn, the defendant in the original suit, and the securities on the appeal bond, who are codefendants with him in the action on the bond, filed the bill and amended bill which are now the subjects of controversy.

The bill, as amended, shows, substantially, the facts above stated, and charges there was no judge presiding in the circuit court of Vermilion county when said original suit was tried and the judgment therein rendered; that said circuit court, from the inception of said trial to its close, in the selection of a jury, in determining the admissibility of evidence, in the giving of instructions to the jury, in receiving the verdict of the jury, and in rendering the judgment aforesaid, was held, conducted and presided over, solely, by one E. S. Terry, who had never been, and was not at said time, judge of said circuit court, or of any court in the State of Illinois; that he had never been elected or appointed to the position of judge of any court in the State; that he made no pretence to be a judge, either de jure or de facto; that he had, at said time, no lawful power or authority to exercise judicial functions; and that he was, in presiding at said trial and holding said court, a mere intruder into the office of judge of said circuit court, in violation of the constitution and laws.

It is further charged, that said record is therefore false and fraudulent; that it purports to be the act of a judge, and the judgment of a court, when there was no judge and no court, and that it was made without any power and authority. It is also stated said pretended judgment was taken by appeal to the Supreme Court of the State, and there being no error apparent in the record, it was by said Supreme Court affirmed, and that the same now remains in the said circuit court of Vermilion county, in full force, unreversed and unsatisfied, so far as the records of said court show, and that there is no error apparent in the record of said pretended judgment. The bill, as amended, prayed for a temporary injunction upon the proceedings in the case at law, pending in the Edgar circuit court, upon the appeal bond; and that the judgment appearing upon the records of the circuit court in Vermilion county, for $15,000, might be set aside, canceled, and for naught held, and adjudged and decreed to be void and of no effect; and that all proceedings in the suit on the appeal bond might, on the final hearing, be perpetually enjoined; and for general relief.

A demurrer to this bill, as amended, was sustained by the circuit court of Edgar county, and the bill was dismissed. An appeal was perfected to the Appellate Court of the Third District, and the decree of the circuit court, sustaining the demurrer and dismissing the bill, was there affirmed.

A further appeal was then taken to this court, and it is here urged the Appellate Court erred in affirming the decree of the circuit court, and in not reversing the same.

The case of Hoagland v. Creed et al. 81 Ill. 506, is not necessarily decisive of this case. There, the question arose upon a writ of error to the Morgan circuit court, and the record filed affirmatively showed a trial before a member of the bar, and what purported to be a judgment rendered by him as judge of the circuit court of Morgan county. That which purported to be a bill of exceptions was signed by him. The record expressly showed the case was tried by a member of the bar, and that his authority for assuming to act as judge was the agreement of the parties. The record did not purport to be a record made by a circuit judge. We there said: “It is impossible for us to close our eyes to the fact, however strongly we might be inclined to do so, that the record sought to be reviewed is one made by Edward P. Kirby, Esq., a member of the bar, and not by any one commissioned to act as circuit judge.” The subject of contradicting a record, or what purported to be a record of a court, did not arise in that case.

A record imports a verity; it can not be contradicted by parol evidence; it must be taken as absolute truth, and must be tried by itself. What is or is not a record is matter of evidence, and any instrument offered as such may be shown to be forged or altered. The bill avers, and the...