People ex rel. Carlstrom v. Eller, 17538.

• Court: Supreme Court of Illinois
• Writing for the Court: HEARD
• Citation: 153 N.E. 597,323 Ill. 28
• Parties: PEOPLE ex rel. CARLSTROM, Atty. Gen., v. ELLER, Judge.
• Docket Number: No. 17538.,17538.
• Decision Date: 28 October 1926

323 Ill. 28
153 N.E. 597

PEOPLE ex rel. CARLSTROM, Atty. Gen.,
v.
ELLER, Judge.

No. 17538.

Supreme Court of Illinois.

Oct. 28, 1926.

Original petition for writ of mandamus by the People, on the relation of Oscar E. Carlstrom, Attorney General, against Emanuel Eller, Judge.

Writ denied.

[153 N.E. 598]

[323 Ill. 29]Oscar E. Carlstrom, Atty. Gen. (Allan T. Gilbert, of Chicago, of counsel), for petitioner.

Urion, Drucker, Reichmann & Boutell and John G. Riordan, all of Chicago, for intervening petitioner.

Schuyler, Ettelson & Weinfeld, of Chicago, for respondent.

HEARD, J.

Upon leave of this court first had and obtained, an original petition was filed herein in the name of the people of the state of Illinois, on the relation of Oscar E. Carlstrom, Attorney General of the state, praying for the issuance of a writ of mandamus to compel Emanuel Eller, one of the judges of the superior court of Cook county and ex officio one of the judges of the criminal court of that county, to expunge from the records of the criminal court an order releasing and discharging Arthur Lorenz from the house of correction of the city of Chicago. The respondent demurred to the petition, and the cause has been argued and submitted on the issue of law raised by the demurrer.

The material facts stated in the petition and admitted by the demurrer to be true are that Arthur Lorenz was indicted, tried, and convicted in the criminal court of Cook county of the crime of libel and sentenced to six months at labor in the house of correction of the city of Chicago and to pay a fine of one dollar and costs. By successive writs of error this judgment of conviction was reviewed by [323 Ill. 30]the Appellate Court for the First District and by this court and affirmed in People v. Spielman, 318 Ill. 482, 149 N. E. 466, and thereafter Lorenz's petition for a rehearing was denied by this court. The mandate of this court affirming the judgment was duly filed in the criminal court of Cook county. Thereafter Lorenz paid the fine and costs, and having been taken into custody by the sheriff of Cook county upon a warrant of commitment upon the judgment of conviction, Lorenz presented a petition for a writ of habeas corpus to the respondent, who after a hearing entered an order discharging Lorenz from the judgment of imprisonment, which order is the one which we are now asked to expunge.

Where a judge of the circuit or criminal court has entered a void order setting aside a judgment of conviction, or has declared void a judgment which is legal, and released a petitioner from custody in a habeas corpus proceeding, mandamus to compel the court to expunge the void order is the proper remedy. People v. Green, 281 Ill. 52, 117 N. E. 764;People v. Fisher, 303 Ill. 430, 135 N. E. 751.

Circuit and superior courts, and the judges thereof, have concurrent jurisdiction with this court in habeas corpus proceedings. When, however, this court, in the exercise of its appellate jurisdiction, has determined a question, either of law or of fact, the matter is ended so far as the circuit or superior court, and the judge thereof, is concerned, and such court may not, by reason of its concurrent jurisdiction in habeas corpus, overrule or review such decision of this court. When a judgment is affirmed by this court all questions raised by the assignments of error, and all questions that might have been so raised, are to be regarded as finally adjudicated against the appellant or plaintiff in error, and the judgment must be regarded as free from all error. Gould v. Sternberg, 128 Ill. 510, 21 N. E. 628,15 Am. St. Rep. 138;Trustees of Schools v. Hoyt, 318 Ill. 60, 148 N. E. 867. When this court affirmed the judgment of the criminal court convicting Lorenz of the crime of libel, this...