Mckindley v. Buck
| Court | Illinois Supreme Court |
| Writing for the Court | BREESE |
| Citation | 43 Ill. 488,1867 WL 5074 |
| Parties | JAMES MCKINDLEY et al.v.MARIA BUCK et al. |
| Decision Date | 30 April 1867 |
43 Ill. 488
1867 WL 5074 (Ill.)
JAMES MCKINDLEY et al.
v.
MARIA BUCK et al.
Supreme Court of Illinois.
April Term, 1867.
WRIT OF ERROR to the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.
The facts of the case sufficiently appear in the opinion of the court.
Messrs. D. C. & I. J. NICHOLES, for the plaintiffs in error, cited the following:
The Superior Court erred in setting aside the judgment after the term had expired at which such judgment was rendered. Cook v. Wood et al., 24 Ill. 295.
Proceedings by writ of error coram nobis have been superseded by the more summary mode of a direct application to the court by motion. Pricket's Heirs v. Legerwood, 7 Peters, 144; Sloo v. State Bank of Illinois, 1 Scam. 436.
A judgment might legally have been rendered against Maria Buck, although she was a married woman, if the evidence warranted it. Emerson v. Clayton, 32 Ill. 494.
The special demurrer should have been sustained. The assignment of errors states no time or place of marriage. The time of every traversable fact must be stated. Gould's Pleadings, p. 87, § 63; p. 110, § 102; Comyn's Digest, pleader C, 119, 120.
Messrs. HURD, BOOTH & KREAMER, for the defendants in error, cited the following:
Affidavits copied into the record are no part of the record. Farnsworth v. Agnew, 27 Ill. 44; Schlump v. Reidersdorf, 28 Id. 68.
A motion by Mrs. Buck would not conclude her husband, who is a party to the writ of error. 2 Tidd's Practice, 1135.
The rule, that the court in which the judgment is rendered, cannot set aside after the term at which it is rendered, does not apply to writs coram nobis.
The court in which the “ error in fact” has occurred is the only court in which it can be corrected. Beaubien v. Hamilton, 3 Scam. 213; Peak v. Shasted, 21 Ill. 137; 3 Burrill's Practice, p. 151, §§ 1008, 1009, 767, 768, 769.
[43 Ill. 490]
Mr. JUSTICE BREESE delivered the opinion of the Court:This court decided in 1860, after much consideration, that a term of the Circuit Court having expired, no discretion or authority remained with that court to set aside a judgment. It might amend it in mere matter of form, after notice to the opposite party. Cook v. Wood et al., 24 Ill. 295. This decision has been adhered to, and will continue to be. This writ of error coram nobis, issued by the Superior Court of Chicago, has very much the appearance of an attempt to avoid this decision, but it cannot succeed.
This old writ has never been in use in this State,...
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Price v. Philip Morris, Inc., No. 117687.
...nobis (see, e.g., Beaubien v. Hamilton, 4 Ill. 213 (1841) ), it was declared “obsolete” by this court in 1867 (see McKindley v. Buck, 43 Ill. 488, 490 (1867) ). In 1871, the legislature expressly abolished the writ and replaced it with a statutory motion. Ellman, 412 Ill. at 290–91, 106 N.E......
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People v. Wright, No. 84721.
...is most effectually supplied by the more summary proceedings, by motion in the court where the error in fact occurred." McKindley v. Buck, 43 Ill. 488, 490 (1867). Shortly thereafter, the General Assembly expressly abolished the common law coram nobis action. See People v. Touhy, 397 Ill. 1......
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Warren Cnty. Soil & Water Conservation Dist. v. Walters, No. 117783.
...a final judgment had fallen out of favor and become obsolete. Ellman, 412 Ill. at 290–91, 106 N.E.2d 350 (discussing McKindley v. Buck, 43 Ill. 488 (1867) ); see also Touhy, 397 Ill. at 23–24, 72 N.E.2d 827 (analyzing McKindley ). Accordingly, our legislature abolished the common law practi......
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Jansen v. Grimshaw
...143;Ryder v. Twiss, 3 Scam. 4;Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Messervey v. Beckwith, Id. 452; McKindley v. Buck, 43 Ill. 488;Knox v. Bank, 57 Ill. 330;Lill v. Stookey, 72 Ill. 495;Coursen v. Hixon, 78 Ill. 339;Becker v. Sauter, 89 Ill. 596;Blake v. Miller, 8 N. E. Rep......
-
Price v. Philip Morris, Inc., No. 117687.
...nobis (see, e.g., Beaubien v. Hamilton, 4 Ill. 213 (1841) ), it was declared “obsolete” by this court in 1867 (see McKindley v. Buck, 43 Ill. 488, 490 (1867) ). In 1871, the legislature expressly abolished the writ and replaced it with a statutory motion. Ellman, 412 Ill. at 290–91, 106 N.E......
-
People v. Wright, No. 84721.
...is most effectually supplied by the more summary proceedings, by motion in the court where the error in fact occurred." McKindley v. Buck, 43 Ill. 488, 490 (1867). Shortly thereafter, the General Assembly expressly abolished the common law coram nobis action. See People v. Touhy, 397 Ill. 1......
-
Warren Cnty. Soil & Water Conservation Dist. v. Walters, No. 117783.
...a final judgment had fallen out of favor and become obsolete. Ellman, 412 Ill. at 290–91, 106 N.E.2d 350 (discussing McKindley v. Buck, 43 Ill. 488 (1867) ); see also Touhy, 397 Ill. at 23–24, 72 N.E.2d 827 (analyzing McKindley ). Accordingly, our legislature abolished the common law practi......
-
Jansen v. Grimshaw
...143;Ryder v. Twiss, 3 Scam. 4;Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Messervey v. Beckwith, Id. 452; McKindley v. Buck, 43 Ill. 488;Knox v. Bank, 57 Ill. 330;Lill v. Stookey, 72 Ill. 495;Coursen v. Hixon, 78 Ill. 339;Becker v. Sauter, 89 Ill. 596;Blake v. Miller, 8 N. E. Rep......