Mains v. Cosner
| Decision Date | 31 January 1873 |
| Citation | 1873 WL 8256,67 Ill. 536 |
| Parties | ARMSTEAD MAINSv.JOSEPH COSNER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Cass county; the Hon. CHARLES TURNER, Judge, presiding.
This was an action on the case, by Joseph Cosner, against Armstead Mains, to recover damages for the seduction of plaintiff's daughter by the defendant. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $4000. From this judgment the defendant prosecuted a writ of error to this court. The case is reported in 62 Ill. 465. After affirmance in this court, the defendant entered his motion in the court below to set aside the judgment, for the reason that, at the time of the issuing and service of the summons, pleading and entering of judgment, he was a minor, under the age of twenty-one years, and that he appeared by attorney instead of by guardian. The motion was overruled, and the defendant again brings the case here by writ of error.
Messrs. KETCHAM & POLLARD, for the plaintiff in error.
Mr. CYRUS EPLER, and Mr. HENRY E. DUMMER, for the defendant in error.
In McKindley v. Buck, 43 Ill. 488, it was strongly intimated that a motion made at a term subsequent to that at which judgment was rendered, could not be sustained, though made to correct errors in fact as upon writ of error coram nobis. This was based upon the doctrine of Cook v. Wood et al. 24 Ill. 295, holding that the power of the court over its judgments was exhausted and ended by the close of the term at which they were rendered, except as to amendments in mere matter of form.
By the act in regard to practice in courts of record, sec. 66, (Laws 1871-72, p. 348,) it is provided: This act went into force July 1, 1872.
The right of a party to have errors in fact corrected by the court in which they were committed, was recognized as a common law right in Sloo v. State Bank, 1 Scam. 436, Beaubien v. Hamilton, 3 Scam. 213, and Peak v. Shasted, 21 Ill. 137. These cases all hold that the party has the same right to have errors in fact corrected by motion in the same court as he would have upon writ of error coram nobis at common law. In Beaubien v. Hamilton it was assumed, and in Peak v. Shasted expressly decided, that infancy, during the proceedings, and appearance by an attorney, or want of a guardian and appearance by him, constituted such error in fact. In the last mentioned case, the motion was made in the court below, at a term subsequent to the judgment, and it appearing, by the record in the original cause, that there was no guardian or appearance by one, and, by the affidavits on which the motion was based, that the defendant was, in fact, a minor, it was held, that the motion to have the judgment recalled should have been allowed, and the order denying it was reversed.
In this case, the motion was made April 11, 1872, after the close of the term at which judgment was rendered, but continued to and heard at the October term, 1872, when it was denied, and the defendant in the judgment making the motion brings the matter to this court by writ of error, assigning for error the refusal of the court to grant such motion. It appears, from affidavits incorporated into the bill of exceptions, that the original judgment was rendered at the October term, 1871; that defendant appeared by attorney, and not otherwise; and that, at the time of its...
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