Consol. Coal Co. of St. Louis v. Oeltjen

• Decision Date: 20 February 1901
• Citation: 189 Ill. 85,59 N.E. 600
• Parties: CONSOLIDATED COAL CO. OF ST. LOUIS v. OELTJEN.
• Court: Illinois Supreme Court

189 Ill. 85

59 N.E. 600

CONSOLIDATED COAL CO. OF ST. LOUIS

v.OELTJEN.

Supreme Court of Illinois.

Feb. 20, 1901.

Appeal from appellate court, Third district.

Action by Fred G. Oeltjen, conservator of Fred Bolliger, against the Consolidated Coal Company of St. Louis. From a judgment of the appellate court (91 Ill. App. 123) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Thomas, for appellant.

Rinaker & Rinaker and Zink, Jett & Kinder, for appellee.

CARTWRIGHT, J.

Fred Bolliger brought this suit in the circuit court of Macoupin county against appellant to recover damages for personal injuries suffered by him. He afterwards appearedby an attorney authorized by him for that purpose, and moved the court to dismiss his suit, which was done, and judgment was entered against him. The appellee, Fred G. Oeltjen, having been appointed conservator of said Fred Bolliger, entered his motion to set aside and vacate said judgment, on the ground that said Bolliger was non compos mentis and incapable of appearing by the attorney and moving to dismiss his suit, and that the judgment entered on his motion was erroneous. The circuit court heard and sustained the motion, vacated the judgment, reinstated the cause, and substituted appellee, the conservator, as plaintiff. The declaration was amended by making a like substitution. The plea of the general issue previously filed was withdrawn, and a plea in abatement was interposed, which was demurred to, and the demurrer was sustained. Leave was then given to again file the general issue, which was done, and there was a trial, resulting in a verdict and judgment against appellant. The appellate court has affirmed that judgment.

At common law, if a judgment was erroneous in a matter of fact only, the party against whom the error was committed was entitled to have the judgment reversed in the same court on a writ of error coram nobis. The office of that writ was to bring to the attention of the trial court errors of fact such as the alleged error in this case, and to obtain relief therefrom. If Bolliger was insane when he appeared in court by an attorney and procured a judgment to be entered against him on hiw own motion, it was such an error as at common law would have been corrected by that writ, and our statute provides that such errors as might have been corrected in that way at common law may be corrected upon motion in writing. Upon such a motion an issue is made up, and the issues in the original action as well as the issues subsequently tried under the plea of the general issue were in no way involved in the motion. That motion presented an issue of fact which was tried by the court and found for the appellee, and judgment was entered on the motion reversing and setting aside the judgment against Bolliger theretofore entered. The parties have treated the appeal to the appellate court and the further appeal to this court as bringing up for review both the proceedings on the motion substituted for the writ of error coram nobis and the subsequent trial and judgment on the issue made by the pleadings, and we have considered all the complaints made.

Appellant contends that the court erred in sustaining the motion, because it was shown that appellee, as...