Mckindley v. Buck
| Decision Date | 30 April 1867 |
| Citation | 43 Ill. 488,1867 WL 5074 |
| Parties | JAMES MCKINDLEY et al.v.MARIA BUCK et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
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Proceedings by writ of error coram nobis have been superseded by the more summary mode of a direct application to the court by motion.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. 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, and it has fallen into desuetude even in England. Its place is most effectually supplied by the more summary proceeding by motion in the court where the error in fact occurred. In this very case, the defendants in error here, one of them, Maria Buck, entered her motion, at the term at which her default was entered, to set the default aside, and read her own affidavit and one made by her counsel, in support of her motion, which the court denied, and to which she excepted. Resort is then had, after the term was ended, to this obsolete writ, to effect that which, at the term, the court committing the alleged error, refused.
Counsel for defendants in error say, that these affidavits cannot be used here, as they are not in the record by bill of exceptions. Nor should they be. They appear in the record as a part of the history of the case, as made by the defendant Maria Buck, and...
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People v. Wright
...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
...from 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 p......
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Price v. Philip Morris, Inc.
...of coram 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......
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Hadley v. Bernero
...facts, though erroneously, the motion coram nobis could not be invoked to have a matter formerly decided, again examined; citing McKindley v. Buck, 43 Ill. 488. On proposition the opinion says that the fact relied on in the motion must have been previously unknown to the court; for if it wa......