Hambel v. McConnell

• Decision Date: 01 April 1895
• Citation: 155 Ill. 192,40 N.E. 608
• Parties: PEOPLE ex rel. HAMBEL v. McCONNELL.
• Court: Illinois Supreme Court

155 Ill. 192

40 N.E. 608

PEOPLE ex rel. HAMBEL

v.McCONNELL.¹

Supreme Court of Illinois.

April 1, 1895.

Petition for mandamus by the people, on the relation of Allie J. Hambel, against S. P. McConnell, judge of the circuit court of Cook county. Writ denied.A. J. Hirschl, for petitioner.

M. J. Thompson, for respondent.

This is an original proceeding for mandamus to compel S. P. McConnell, one of the judges of the circuit court of Cook county, to hear and determine upon its merits a motion for a new trial; Judge Driggs, before whom the cause was tried, having died after the trial, and before disposition of the motion. This is the second application, the writ upon the former proceeding having been denied. People v. McConnell, 146 Ill. 532, 34 N. E. 945. The petition in the present case represents that heretofore and now there is still pending in the circuit court of Cook county a certain action at law, wherein Allie J. Hambel is plaintiff and Charles F. Hayes is defendant, and that such proceedings were had therein that the same was tried by a jury, the Honorable George Driggs presiding as judge; that upon March 3, 1892, a verdict was returned by the jury in favor of the plaintiff, and against the defendant, for $400; that on March 8, 1892, the defendant, Hayes, caused to be entered his motion for a new trial, which is set out in the petition; that, while said motion was pending and undisposed of, the said George Driggs died, on or about March 18, 1892; that the Honorable Samuel P. McConnell, respondent, is now, and for a year or more last past has been, one of the judges of the said circuit court; that on or before May 2, 1892, the plaintiff, Hambel, entered a motion in said court before the said McConnell, presiding as judge of said court, that he should entertain, hear, consider, and decide upon its merits the said motion for a new trial; and further represents that the plaintiff then and there, in open court, tendered to the said Judge McConnell, a true, full, and correct transcript of all the evidence and proceedings taken or had at and during said trial before the said Judge Driggs; that thereupon arguments were made in open court, before the said Judge McConnell, by the attorneys of the parties, respectively, and on June 3, 1892, the court, said McConnell, judge presiding, denied the motion of said Hambel, and refused, and still refuses, to entertain, hear, consider, or decide upon its merits the said motion for a new trial, and refuses to do any one of more of these matters, and asserts and alleges that he has neither power nor jurisdiction to entertain, hear, consider, or decide upon its merits the said motion for a new trial so entered as aforesaid; and, further, that said Judge McConnell has refused, and is now refusing, to perform a legal and statutory duty, and ‘that he so refused upon the ground and for the reason which he has stated,-that is, that only the judge before whom a case has been tried has the power to consider the merits of a motion for a new trial, and to consider whether such motion should or should not be granted, and to rule accordingly’; that it is the duty, by statute, of said circuit court, to consider upon its merits the said motion, and to overrule the same if the merits of the controversy so require; and that it is the duty of said McConnell, he being and constituting such court, to entertain, hear, consider, and decide said motion; prays the issuance of a mandamus compelling the respondent, McConnell, as such circuit judge, to entertain, hear, consider upon its merits, and decide the said motion for a new trial, and for such other relief as the circumstances may require. Answer to said petition was filed by said respondent, alleging, in substance, that no official or authenticated record of the evidence was produced before him upon the hearing of said motion for a new trial, and that, without such official or authentic transcript of the evidence, there is no legal duty incumbent on him to so hear and decide said motion. Reply was filed, wherein the relator averred that there is no method known to the law by which such official record can be made, perpetuated, or produced before the respondent, except as the relator shows to have been offered and done in this proceeding; that relator did all the law requires and makes possible under the circumstances,-that is, relator offered a true, full, and complete record of all the evidence and proceedings had on the trial before said Judge Driggs, and to prove by the stenographer that the same was a full, true, and complete transcript, as aforesaid; and that thus and thereby the same can be made officially a record, by being properly embodied in a bill of exceptions signed and sealed by the respondent, S. P. McConnell, judge, etc.; and that relator, as alleged in her petition, tendered to the respondent a true, full, and complete transcript of all the evidence and proceedings had on the trial before said Judge Driggs, which tender is not denied by the respondent; and that the respondent, McConnell, declared that, even if satisfied that such transcript was in every particular true, correct, full, and complete, nevertheless, not having presided at said trial between Hambel and Hayes, and not having seen the witnesses at the time, he was without power to hear and determine said motion for a new trial upon its merits; and that it would be useless for relator to again tender him such transcript of the evidence and record, no matter how full and complete, without first having obtained the mandamus applied for; and, unless awarded the writ, the relator is, and must ever be, denied of right and justice, and a legal and statutory hearing upon the merits of said motion, etc.,-all of which relator is ready to verify, etc.

By stipulation of the parties, the cause was submitted to the court upon the petition, answer, replication, and briefs, and the following agreed statement of facts: ‘First. That Judge Driggs, who tried the case, and in whose court a verdict was entered against the defendant [Hayes], died pending a motion for a new trial regularly filed, and that the exhibit attached to said petition is a true copy of said motion; and said case of Hambel v. Hayes and said motion for a new trial are still pending and undisposed of. Second. That subsequently, by agreement of counsel, the question was submitted to his honor, Judge S. P. McConnell, sitting in open court, and holding term of said circuit court, to decide whether or not he could lawfully hear and determine the motion for a new trial upon its merits, and especially when one of the grounds of the motion affected the weight of evidence upon which the verdict was entered; and said Hambel moved that he hear said motion, and decide it on its merits. Said Judge McConnell was then and ever since and still is a judge of such circuit court. Third. That, with reference to the evidence taken by a stenographer at the trial, the counsel for the plaintiff, Hambel, then and there stated to his honor, Judge McConnell, that he had a true, complete, full, and correct transcript of all the testimony, evidence, and proceedings of said trial, and offered to prove by the stenographer who took the case that such transcript was in every respect true, full, correct, and complete; and he offered to present said transcript to the court for examination or reference, as containing testimony and evidence supporting the verdict, but such transcript of the evidence was not agreed to by counsel for defendant as being correct and true, nor as being in any way authenticated under the rules of court with relation to matters not appearing of record; nor, on the other hand, did defendant's counsel allege that there was any error in said transcript. Fourth. That Judge McConnell waived the actual presentation of the supposed evidence, and...