Cameron v. Clinton

• Decision Date: 28 October 1913
• Parties: CAMERON v. CLINTON et al.
• Court: Illinois Supreme Court

259 Ill. 599

102 N.E. 1000

CAMERON

v.CLINTON et al.

Supreme Court of Illinois.

Oct. 28, 1913.

Error to Circuit Court, Kendall County; Duane J. Carnes, Judge.

Suit by Robert B. Cameron against Charles Clinton and others, with which a suit by C. H. Spangler against Robert B. Cameron and others was consolidated for trial. Decree denying the rights claimed by Robert B. Cameron and others, and he brings error. Reversed and remanded.

Benjamin F. Herrington, of Yorkville, for plaintiff in error.

Aldrich & Worcester, A. H. Switzer, and Fred C. G. Schmidt, all of Aurora, for defendants in error.

FARMER, J.

This is a writ of error sued out by plaintiff in error for the reversal of a decree of the circuit court of Kendall county. The ground urged for reversal is that the cause was heard at the April term, 1911, of the Kendall county circuit court but no decree was entered at that term; that afterwards, on the 2d day of August, 1911, the draft of a decree was filed in the office of the circuit clerk as of May 3, 1911, which was the day the hearing was concluded; and that the case was not taken under advisement and no consent of plaintiff in error was obtained to the entry of a decree in vacation.

The record shows that plaintiff in error filed a ‘bill in equity’ in the circuit court of Kendall county to the April term against Charles Clinton and others, and that C. H. Spangler filed a bill for partition to the same term against plaintiff in error and the same parties who are made defendants in his bill. By agreement of the parties the two cases were consolidated for hearing. The bills are not copied in the record. The record shows that on the 3d day of May, 1911, the hearing was concluded, ‘and upon consideration of the evidence a decree is entered as per draft to be filed.’ Thereupon court adjourned until June 6, 1911, and on that date, another judge presiding, court adjourned until June 28, 1911, on which date the judge who heard the cause presided and adjourned the term until court in course. An order was entered that all cases not otherwise disposed of were continued. The decree copied in the record is entitled of the April term, 1911, and recites that the consolidated causes were heard on the 3d day of May. The decree recites that plaintiff in error is in possession of certain real estate described, but that he has no right, title, or interest, by way of possession or otherwise, in said premises; that Charles Clinton, one of the defendants to the bill of plaintiff in error, did not enter into a contract with him, as alleged in his bill. The decree further finds that plaintiff in error has no right, title, or interest in certain railroad bonds described, and his bill is dismissed for want of equity. A decree for partition is entered upon the bill of C. H. Spangler. This decree bears the signature of the judge who presided at the hearing, and the notation, ‘Filed August 2, 1911, as of May 3, 1911.’ From this record it appears that no decree was entered of record during the April term, but that the draft of the decree was presented for record to the clerk of the court on the 2d day of August, which was in vacation, and was by him filed on that day as of the day the hearing was concluded at the April term and entered of record. No memorial paper or minute appears showing what the decree to be entered ‘as per draft to be filed’ was or in whose favor it was. The cause was not taken under advisement and there was no stipulation for the entry of a decree in vacation.

[1] The practice in this state has always been for the solicitor of the party in whose favor a decree is pronounced to write it out in due form and submit it to the chancellor for approval, which is the authority of the clerk to enroll it or enter it upon the record. Stevens v. Coffeen, 39 Ill. 148;Hurd v. Goodrich, 59 Ill. 450;Horn v. Horn, 234 Ill. 268, 84 N. E. 904. In Hughs v. Washington, 65 Ill. 245, the court heard the evidence in a chancery cause on the 6th day of May, 1871, and, it was claimed, announced his decision in favor of complainants, but in October following, and before any decree was rendered or enrolled, a fire destroyed the courthouse...