Cent. Bond & Mortg. Co. v. Roeser

• Decision Date: 28 October 1926
• Docket Number: No. 16919.,16919.
• Court: Illinois Supreme Court
• Parties: CENTRAL BOND & MORTGAGE CO. v. ROESER.

323 Ill. 90

153 N.E. 732

CENTRAL BOND & MORTGAGE CO.

v.ROESER.

No. 16919.

Supreme Court of Illinois.

Oct. 28, 1926.

Action by the Central Bond & Mortgage Company against John Roeser. Order denying plaintiff's motion to expunge matters from the record was affirmed by the Appellate Court, which granted certificate of importance, and plaintiff appeals.

Affirmed.

See, also, 237 Ill. App. 652.

Appeal from the First Branch, Appellate Court, First District, on error to Municipal Court of Chicago; Daniel P. Trude, Judge.

Stebbins, Garey, L'Amoreaux & Hurtubise, of Chicago (Earl James Garey, of Chicago, of counsel), for appellant.

Joseph G. Sheldon, of Chicago, for appellee.

DE YOUNG, J.

On November 9, 1921, the Central Bond & Mortgage Company, a corporation, brought an action in the municipal court of Chicago against John Roeser claiming damages for an alleged breach of contract. Summons was served, and the defendant filed an appearance and demand for a jury trial and an affidavit of merits denying liability and claiming the benefit of the statute of frauds. When the case was called for trial on March 26, 1923, the defendant failed to appear, evidence was introduced, and the jury was instructed to return a verdict for the plaintiff for $1,160. Judgment was rendered on the verdict on the same day, and later an execution was issued. On May 12, 1923, 47 days after the recovery of the judgment,notice having been given the plaintiff's attorneys, the defendant made a motion based upon the affidavit of one of his attorneys, to vacate the judgment. The motion was granted and the judgment was set aside. The second trial occurred on May 22, 1923, before another judge. Both parties participated in this trial, and the jury returned a verdict in favor of the defendant. The plaintiff made a motion for a new trial, but before it was argued the presiding judge died. While that motion was pending, on February 11, 1924, pursuant to leave granted by a third judge, the plaintiff filed a petition to expunge from the records all orders entered in the cause subsequently to the judgment of March 26, 1923, on the ground that the court was without jurisdiction to enter the order of May 12, 1923, which vacated that judgment. On March 7, 1924, the plaintiff's motion for new trial was granted, and its petition to expunge the orders specified was denied. On the same day the plaintiff submitted certain propositions of law for the consideration of the court, but permission to file them was refused. The proceedings upon the petition to expunge, including the submission of the propositions of law and the order excluding them, were preserved by a bill of exceptions presented, signed, and filed on March 29, 1924. The case was called for trial the third time on April 14, 1924, but the plaintiff failed to appear, and on motion of the defendant the suit was dismissed for want of prosecution. The plaintiff prosecuted a writ of error from the Appellate Court for the First District, and that court affirmed the order of the municipal court denying the prayer of the petition to expunge the orders entered after March 26, 1923. Application for a rehearing was made and denied, and thereafter the Appellate Court granted a certificate of importance and allowed an appeal to this court.

[1]Appellant contends that the order of May 12, 1923, vacating the judgment rendered March 26, 1923, was interlocutory and not final or appealable, and that it was obliged for that reason to try the case again before it could seek a review of that order by an appellate tribunal. Section 21 of the Municipal Court Act (Smith's Stat. 1925, p. 838), provides that there shall be no stated terms of that court, but that it shall always be open for the transaction of business, and that, if the motion for that purpose be entered within 30 days, every judgment, order, or decree of the court, final in its nature, may be vacated, set aside, or modified in the same manner and to the same extent as a judgment, order, or decree of a circuit court may be vacated, modified, or set aside during the term at which it was rendered. The section concludes:

‘If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said municipal court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the circuit courts.’

Section 89 of the Practice Act(Smith's Stat. 1925, p. 1963), applicable to practice and procedure in circuit courts, 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 that 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.

[2] The motion under section 89 of the Practice Act is independent of the suit or proceeding in which the judgment sought to be corrected or vacated was rendered. Such a motion stands as a declaration in a new suit, in which new issues are presented and upon which there must be a finding and a judgment. Harris v. Chicago House Wrecking Co., 314 Ill. 500, 145 N. E. 666;Smyth v. Fargo, 307 Ill. 300, 138 N. E. 610;Domitski v. American Linseed Co., 221 Ill. 161, 77 N. E. 428;Mitchell v. King, 187 Ill. 452, 55 N. E. 637,58 N. E. 310. If the motion is intended to allege errors of fact and the action of the court in sustaining the motion is based on a finding that there were such errors, the order will be regarded as final and appealable. Cramer v. Illinois Commercial Men's Ass'n, 260 Ill. 516, 103 N. E. 459. The concluding proviso to section 21 of the Municipal Court Act is analogous to section 89 of the Practice Act, and if an order setting aside a judgment by authority of the latter section is final and appealable, it follows that a like order under section 21 of the Municipal Court Act is likewise final and subject to a direct review.

The vacated judgment was rendered on March 26, 1923. When appellee made his motion to set the judgment aside more than 30 days had elapsed since its rendition. Section 21 of the Municipal Court Act provides the only methods by which final judgments of the municipal court can be vacated after the expiration of the 30-day period. No appeal or writ of error was prosecuted by appellee to review the judgment, nor did he file a bill in equity or petition to vacate it. To sustain the order of May 12, 1923, the proceedings which culminated in that order must have been taken by authority of the concluding proviso of section 21 of the Municipal Court Act. It cannot be presumed that the trial court attempted to examine, revise, or correct its action for an error of law more than 30 days after the judgment had been rendered, in view of the well-establishedrule that it had no power to do so. Pisa v. Rezek, 206 Ill. 344, 69 N. E. 67; Cramer v. Illinois Commercial Men's Ass'n, supra. The motion was intended to allege errors of fact, and the court's action was based upon a finding that there were such errors. Hence the order vacating the judgment was a final order and directly reviewable as a final judgment. Cramer v. Illinois Commercial Men's Ass'n, supra; Mitchell v. King, supra; Domitski v. American Linseed Co., supra.

Appellant, however, insists that the motion did not on its face disclose any error in fact, and that the municipal court for that reason erred in assuming jurisdiction of the motion. The question whether the motion showed any cause for annulling the judgment is one of law, and if appellant desired to present that question to this court, it should, under the rules of practice applicable to suits at law in which declarations are filed, have saved that question in some appropriate way recognized by law. No issue of law was made upon the motion, and its sufficiency to support the order vacating the judgment was not questioned. By section 21, supra, the municipal court is given...