People ex rel. Campo v. Matchett

• Decision Date: 18 September 1946
• Docket Number: No. 29559.,29559.
• Citation: 394 Ill. 464,68 N.E.2d 747
• Parties: PEOPLE ex rel. CAMPO v. MATCHETT et al.
• Court: Illinois Supreme Court

394 Ill. 464

68 N.E.2d 747

PEOPLE ex rel. CAMPO

v.MATCHETT et al.

No. 29559.

Supreme Court of Illinois.

Sept. 18, 1946.

Original proceeding by the People, on the relation of Alice Campo, against David F. Matchett and others, Justices of the First Division of the Appellate Court for the First District, for a writ of mandamus directing the respondents to expunge an order and judgment entered by them, 328 Ill.App. 113, 65 N.E.2d 224. On respondents' motion to strike out the petition.

Writ awarded.

Harold Omar Mulks, of Chicago, for petitioner.

Robert F. Kolb, Reuel H. Grunewald, and Francis M. Cooper, all of Chicago, for respondents.

MURPHY, Justice.

At a prior term of this court leave was granted Alice Campo to file an original petition for mandamus directed against the Justices of the First Division of the Appellate Court for the First District. The prayer of the petition is that respondents be commanded to expunge an order entered by them on January 25, 1946, in a cause entitled Koepke v. Schumacher et al., and also to expunge a judgment entered in said cause on February 18, 1946, 328 Ill.App. 113, 65 N.E.2d 224. Respondents' motion to strike the petition raised issues of law.

The order and judgment which petitioner seeks to have expunged were entered by respondents after the cause had been in this court under the title of Koepke v. Campo and the judgment entered by the Appellate Court had been reversed and the cause remanded to that court with directions to dismiss the appeal. 391 Ill. 355, 63 N.E.2d 507. The order and judgment attacked in this proceeding were entered by respondents in giving effect to the mandate of this court.

In 1942, Koepke instituted an action in the circuit court of Cook county to foreclose a trust deed. Petitioner was named as a defendant in such action under a general allegation that she had, or claimed, some interest in the premises sought to be foreclosed. She was not personally served nor did she enter appearance. Koepke undertook to bring her within the jurisdiction of the court on notice by publication. After such publication was had, a decree of default was entered, followed by a decree of foreclosure. Thereafter a sale was had of the mortgaged premises at which Koepke became the beneficial owner. On February 14, 1944, which was about 15 months after the decree of foreclosure was entered, and about 14 months after the sale, petitioner in this cause filed a motion in the foreclosure action to vacate and set aside the sale, and the decree of foreclosure, and for leave to appear and file an answer. It was alleged in such motion that the affidavit of nonresidence was defective. Koepke resisted petitioner's motion to vacate and first moved to strike petitioner's motion. His motion was overruled. He then filed an answer which was stricken, and on March 16, 1944, after Koepke had elected to stand by his pleading, the court entered an order vacating the sale and the decree of foreclosure, and granting petitioner leave to answer.

Koepke filed a notice of appeal to the Appellate Court, and on April 9, 1944, filed a praecipe for record in the circuit court. It specified various pleadings, decrees and orders, and item 3 was the request to include an affidavit of nonresidence as a part of the transcript of the record. The affidavit of nonresidence upon which notice by publication was had was filed in the circuit court September 28, 1942. It appears to have been in the files of the circuit court when petitioner filed her motion to vacate the decree on February 14, 1944, and there is an allegation in the petition in this cause, which respondents' motion to dismiss admits to be true, that such affidavit remained in the files at least until March 16, 1944. Soon thereafter it was lost. On June 1, 1944, Koepke was before the circuit court with a motion in which it was alleged that the affidavit of nonresidence filed September 28, 1942, had been lost. He attached to his motion what was alleged to be a true and complete copy of the original, and the prayer was that permission be granted to substitute such copy for the original. The motion was allowed and evidently Koepke intended that the substituted copy should be included as a part of the transcript of record to be filed in the Appellate Court. However, the clerk's certificate of authentication expressly excepted the affidavit of nonresidence, but a copy of an affidavit was inserted in the record as page 24A. Petitioner, as appellee in the Appellate Court, contended in that court that there were certain discrepancies between the original affidavit of nonresidence and the copy placed in the record by the order of June 1, 1944, which was inserted as page 24A in the transcript. She moved to dismiss the appeal, but the motion was denied and an opinion rendered which, in considering the question of jurisdiction, held the copy of the affidavit of nonresidence placed in the record, page 24A, to supply the lost file, was sufficient. The judgment of the Appellate Court reversed the order of the circuit court. We granted leave to appeal and, finding the affidavit of nonresidence inserted in the record at page 24A of the transcript had not been properly authenticated, the judgment of the Appellate Court was reversed and the cause remanded to that court ‘with directions to dismiss the appeal.’

After the mandate of this court had been filed in the Appellate Court, petitioner herein moved that the cause be redocketed and the appeal dismissed. She also prayed for an assessment of damages. Koepke countered with a cross motion, in which he moved for leave to withdraw the original transcript of record and to amend the same by having the clerk of the circuit court insert an authenticated copy of the original affidavit of nonresidence, and also to have the clerk of the trial court correct his former certificate of authentication so as to include therein the affidavit of nonresidence. The final prayer was that the Appellate Court reconsider and determine the cause upon the record thus amended.

On December 14, 1945, respondents entered orders which in substance suspended action on petitioner's motion but allowed Koepke's motion for leave to withdraw and amend the record. On December 26, 1945, Koepke filed a praecipe for record in the office of the clerk of the circuit court, in which he asked for a further authenticated transcript to include: ‘Copy of affidavit of non-residence filed on September 28, 1942, being the affidavit of non-residence designated as item 3 in praecipe for record filed in said cause on April 8, 1944. Certificate of clerk that the affidavit of non-residence shown on page 24A of the record certified under certificate of clerk dated June 1, 1944, as filed on September 28, 1942, was in fact an affidavit of...