Haines v. People of State

Citation1880 WL 10175,97 Ill. 161
PartiesJ. CHARLES HAINESv.THE PEOPLE OF THE STATE OF ILLINOIS.
Decision Date20 November 1880
CourtSupreme Court of Illinois
OPINION TEXT STARTS HERE

WRIT OF ERROR to the Probate Court of Cook county; the Hon. JOSHUA C. KNICKERBOCKER, Judge, presiding.

This was a proceeding by the People of the State of Illinois, in the probate court of Cook county, against plaintiff in error, for an alleged contempt.

It appears that on the 8th day of December, 1879, plaintiff in error, being in arrears as administrator with the heirs at law of J. H. Schulenberg, in the sum of $651.21, entered into the following stipulation:

+---------------------------------------+
                ¦“STATE OF ILLINOIS,            ¦)¦     ¦
                +-------------------------------+-+-----¦
                ¦                               ¦)¦ss.  ¦
                +-------------------------------+-+-----¦
                ¦County of Cook.                ¦)¦     ¦
                +-------------------------------+-+-----¦
                ¦Probate Court of Cook County.  ¦ ¦     ¦
                +---------------------------------------+
                

In the matter of the estate of John H. Schulenberg, deceased:

It is hereby stipulated that the account on file and approved, in said estate, on August 18, 1879, showing a balance of $651.20 in the hands of said administrator of said estate, stand for and in lieu of a final account, and that an order be entered directing said administrator to pay said balance so found in his hands, less the costs of final settlement, to the several parties entitled thereto, within the time provided by statute, thirty days from entry of order, and that no further demand be required by said administrator.

December 8, 1879.

J. CHARLES HAINES, Admr. etc.

By C. C. Kohlsaat, his Attorney.

ADOLPH MOSES, Att'y for Heirs.

J. CHARLES HAINES, Admr. etc.”

Upon putting this stipulation on file the probate court entered of record an order “that the account of said administrator, approved by the court on the 18th day of August, 1879, stand as and for the final account of said administrator with said estate; that said administrator make distribution of the balance in his hands belonging to said estate, to-wit, the sum of $651.20, among the heirs-at-law of said decedent, within thirty days from this date, and that upon filing herein the receipts of said heirs-at-law for their respective shares of said balance, the said administrator shall be discharged.”

On the 13th of January following, the probate court, after reciting at length the foregoing stipulation and order of the 8th of December, and also reciting that it appeared from testimony in open court that said last mentioned order had not been complied with by the administrator, entered another order, directing “that an attachment issue commanding the sheriff of Cook county to arrest J. Charles Haines, administrator, and bring him before the court forthwith, to answer the People of the State of Illinois for a contempt of court, in failing and refusing to comply with the requirements of said order of court.” In pursuance of this order the following writ of attachment was issued on the same day, which, by agreement of parties, is to be considered a part of the record:

We command you to take J. Charles Haines, administrator of the estate of John H. Schulenberg, deceased, and him safely keep, so that you have his body forthwith before the probate court of Cook county, at a term now holden at the probate court room, 77 Clark street, in the city of Chicago, to answer the People of the State of Illinois for a contempt of court in not complying with an order of said court made and entered on the 8th day of December, A. D. 1879, requiring him, as the administrator of the estate of John H. Schulenberg, deceased, to distribute the balance found in his hands within thirty days from demand of distributees. And have you then and there this writ. Dated January 13, 1880.”

On the same day Haines was arrested under this attachment, and appeared in open court, in custody of the sheriff, in answer thereto. The cause was continued until the following day, when the court, without any further judicial inquiry, made the following order:

“Ordered by the court, that the said J. Charles Haines be committed to the common jail of Cook county, Illinois, until he shall comply with the requirements of an order made and entered of record, December 8, A. D. 1879, or until the further order of the court.”

Upon the entry of this order plaintiff in error prayed an appeal to the circuit court of Cook county, which the court disallowed, on the alleged ground that the law did not provide for an appeal in such case.

Thereupon the administrator sued out this writ of error, and has assigned various errors upon the record.

Mr. E. M. HAINES, for the plaintiff in error:

The right of appeal in this case clearly existed. Section 11 of the Probate Court act, Laws 1877, p. 79.

Conceding the proceeding to be one for contempt of court, the right of appeal exists. In other words, the right of review by a superior tribunal exists. Blake v. The People, 80 Ill. 11; Callaghan v. Callaghan, 62 Id. 552; Dinet v. The People, 73 Id. 183; Storey v. The People, 79 Id. 45. Where an appeal is not given by statute, or where the party is deprived of an appeal, as in this case, by the refusal of the judge to fix the conditions of his bond, and approve his sureties, a writ of error lies. Peak v. The People, 76 Ill. 289; Hall v. Thode, 75 Id. 173; Unknown Heirs, etc. v. Baker, 23 Id. 487; Schlattweiler v. St. Clair Co. 63 Id. 449; French v. The People, 77 Id. 531.

A writ of error lies from the county court, hence from the probate court in the like class of cases. Hall v. Thode, 75 Ill. 173.

At common law the only mode of removing a cause from an inferior court of record to a superior court for review, was by writ of error, and it was a writ of right, except in capital cases. Bowers v. Green, 1 Scam. 42; McClay et al. v. Norris, 4 Gilm. 370.

The right to appeal, or sue out a writ of error, is a constitutional right, and must be allowed when claimed. Wallace v. The People, 63 Ill. 449; Const. 1870, art. 6, sec. 8.

The probate court of Cook county, like all other courts of limited jurisdiction, possesses no powers beyond those expressly granted. Field v. The People, 2 Scam. 49; School Inspectors v. Grove, 20 Ill. 525; Dowling v. Stewart, 3 Scam. 192; Wells v. Mason et al. 4 Id. 84.

The alleged offence in this case is neither a contempt of court at common law, nor is it made so by statute. It is true, power is given to commit delinquent executors and administrators in certain cases. Rev. Stat. ch. 3, sec. 114.

The section of the statute just cited does not authorize an attachment of the delinquent until the expiration of thirty days after demand for such moneys or dividends, which demand can not be made until after the time fixed for payment by the order of the court. Johnson v. Von Kettler, 66 Ill. 68.

In criminal proceedings a demand required by statute can not be waived. Wright v. The People, 61 Ill. 382; Clark v. The People, Breese, 266; Stuart v. The People, 3 Scam. 395; The People ex rel. v. Neill, 74 Ill. 68.

The court can not commit, in any event, unless it appears that the alleged non-compliance was willful, and this the order of commitment must show. O'Callaghan v. O'Callaghan, 69 Ill. 552; Dinet v. The People, 73 Id. 183.

Mr. ADOLPH MOSES, for the People:

An appeal being allowed and regulated by sec. 11 of the Probate act of 1877, no writ of error will lie from this court. On the same point counsel referred to Peak v. The People, 76 Ill. 289; Hobson v. Paine, 40 Id. 25; Frans v. The People, 59 Id. 427; The People v. Huntoon, 71 Id. 536; Stuart v. The People, 3 Scam. 395.

The order of the probate court is not final, but interlocutory. State ex rel. etc. v. Judge of Parish Court, 21 La. 116; Dayton on Surrogates, 37; Ex parte Smith, 53 Cal. 207; Gary's Prob. Pr. 223-230.

By the stipulation filed, the administrator first waived any further demand, then promised to make distribution within thirty days, and stipulated that the court might enter such order.

The power to enforce, by attachment, decrees for the payment of money, against executors, etc., is now authoritatively established. Seaman v. Duryea, 1 Kern. 324; Ex parte Smith, 53 Cal. 207.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

We are confronted, at the threshold of this case, with the objection that a writ of error does not lie in a case of this character. If the objection be well taken, it is certainly fatal to this proceeding, and the only order that can be properly entered by this court is one dismissing the writ.

By the common law of England a writ of error is grantable ex debito justitiæ in all cases, either civil or criminal, except in treason and felony, and the doctrine is well recognized that whenever a new jurisdiction is erected by act of parliament, and the court or judge that exercises this jurisdiction acts as a court of record according to the course of the common law, a writ of error lies on their judgments; but if they act in a summary way, or in a new course different from the common law, a writ of error will not lie, but a certiorari. And such is the doctrine of this State, except so far as it has been modified by statutory or constitutional enactments.

At an early period in the judicial history of this State the common law doctrine on this subject was fully recognized.

Under the constitution of 1818, the whole subject was left substantially within the control of the legislature. Section 2 of article 4 of that constitution, which contains the only provision on the subject, is as follows:

“The Supreme Court shall be holden at the seat of government, and shall have an appellate jurisdiction only, except in cases relating to the revenue, in cases of mandamus, and in such cases of impeachment as may be required to be tried before it.”

Under this constitution the legislature, in January, 1827, passed an act declaring “that appeals from the circuit court to the Supreme Court...

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