Hibbard v. Mueller

• Decision Date: 30 September 1877
• Citation: 1877 WL 9707,86 Ill. 256
• Parties: SAMUEL E. HIBBARDv.JOHN M. MUELLER.
• Court: Illinois Supreme Court

86 Ill. 256

1877 WL 9707 (Ill.)

SAMUEL E. HIBBARD

v.JOHN M. MUELLER.

Supreme Court of Illinois.

September Term, 1877.

WRIT OF ERROR to the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. J. L. HIGH, for the plaintiff in error.

Messrs. HOYNE, HORTON & HOYNE, for the defendant in error.

Mr. JUSTICE CRAIGdelivered the opinion of the Court:

At the October term, 1875, of the Superior Court of Cook County, a judgment by default was rendered against the defendant in error.At the same term of courthe appeared and entered a motion to set aside the default and vacate the judgment.This motion the court continued until the November term of court, when it was heard and allowed; and the only question presented by the record is, whether the court exceeded its power in allowing the motion to vacate the judgment.

There can be no doubt but the power of a circuit court to change or alter its judgments in a matter of substance is confined to the term of court at which the judgment is rendered.During the term, in contemplation of law, the record containing the proceedings is in the breast of the court, and, while this continues, such amendments of the record as seem proper may be made; but after a final judgment has been entered, and the term of court at which the judgment was rendered has closed, no steps having been taken to vacate the same, the court at a subsequent term has no power to alter or amend its final judgment so rendered, except perhaps in respect to mere matters of form.This is the doctrine of Cook v. Wood,24 Ill. 295;Messervey v. Beckwith,41 Id. 452;McKindley v. Buck,43 Id. 488;Fix v. Quinn,75 Id. 232;Coursen v. Hixon,78 Id. 339; to which we have been referred by the counsel for plaintiff in error.These cases do not, however, control the question presented by this record.In all of them the motion to vacate or change the judgment was entered at a term subsequent to the rendition of the judgment, while here the motion to vacate the judgment was made at the term of court at which the judgment was rendered, and expressly continued by the court to the next term for hearing and decision.

This case is in all respects like Windett v. Hamilton,52 Ill. 180, in which it was decided that where a final judgment is entered upon a default, and a motion is made at the term to vacate the judgment and set aside the default, and such motion is continued to a subsequent term, the court thereby retains its control over the judgment, and the motion may be allowed at a subsequent term.The language there used is applicable here, where it is said: “The default was taken at the September term and the motion made at that term to set it aside, which motion was continued for discussion to the next term, and then it was allowed.The motion having been entered at the September term, the cause was kept in court and remained on the docket.* * * The court at the October term had the same power over the cause that it had at the September term, the motion attaching to it at that term, and the cause remaining on the docket subject to this motion.”There is no substantial difference between the question here presented and the one determined in the case last cited, and this case must be controlled by that.

Indeed, no reason has been suggested in the argument, and none has occurred to us, which would compel the court to decide the motion made to vacate a judgment at the term in which it was entered, or lose power or jurisdiction over the subject matter of the motion.If such was the law, great hardship might occur in many cases, and the ends of justice might often be defeated.Suppose a judgment by default should be entered on the last day of a term of court, which was entirely destitute of merit, and the defendant should immediately appear and enter a motion to vacate the judgment, but owing to the press of other business the court could...