People ex rel. Courtney v. Green
| Decision Date | 23 February 1934 |
| Docket Number | Nos. 21952-21958.,s. 21952-21958. |
| Citation | 189 N.E. 500,355 Ill. 468 |
| Parties | PEOPLE ex rel. COURTNEY, State's Atty., v. GREEN, Judge (three cases). SAME v. BORELLI, Judge (three cases) SAME v. O'CONNELL, Judge. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Original proceedings by the People, on the relation of Thomas J. Courtney, State's Attorney, for writs of mandamus to Thomas A. Green, Francis A. Borelli, and Harold P. O'Connell, Judges of the Municipal Court of Chicago.
Writs denied.
DE YOUNG, JONES, and FARTHING, JJ., dissenting.Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Grover C. Niemeyer, Edward E. Wilson, and Grenville Beardsley, all of Chicago, of counsel), for petitioner.
Hiram T. Gilbert, of Chicago, for respondents.
These cases are here on original petitions for writs of mandamus to compel the respondents, each of whom is a judge of the municipal court of Chicago, to expunge from the records of that court certain orders setting aside judgment of conviction and commitment to the house of correction of certain defendants under charges of misdemeanor,made in each case by an information filed therein. The facts differ somewhat in each case, but the controlling question raised in each is identical, and is whether the respondents had jurisdiction to enter the orders complained of by relator. In each case the defendant had waived trial by jury and by agreement trial was had before the court. In each case, after conviction and sentence, execution of the sentence was had by delivering the defendant to the superintendent of the house of correction. Thereafter a petition was in each case filed purporting to seek relief under section 89 of the Practice Act (Smith-Hurd Rev. St. 1933, c. 110, § 89), praying that the judgment be set aside and a retrial of the cause had, for the reason that the defendant was not represented by counsel and that evidence could be produced showing that he was not guilty of the charge made. In each of these cases the prayer of the petition was granted and the case reheard. In some of them the defendant was, after new trial, placed on probation. The periods of probation varied from ten days to one year. In some the defendant was discharged, and in one case the cause was continued and the defendant released on his own recognizance, and at the time of the filing of relator's petition herein the case against him had not been retried.
The respondents have answered admitting the filing of the informations against the various defendants, their arraignment and trial without a jury, and finding of guilty, and sentence as alleged in the petition. Each respondent admits that a petition was filed before him under section 89 of the Practice Act, and avers that the defendants in the cases before him involved here were ignorant and unable to understand ordinary words of the law; that the respondent had power in each case to consider the petition, which purported to show an excusable mistake of fact and ignorance on the part of the accused so as to render them incapable of making a defense. Respondents assert that the state's attorney in most of these cases did not appear. Respondents further answer that the petitions under section 89 of the Practice Act aver that the accused in each case was not represented by counsel, and respondents say that while the clerk, in writing up the record, has shown that they were represented by counsel, respondents, who heard the cause, know, in fact, that they were not and that the record was wrongfully written up. Respondents admit in each of these cases that they set aside the judgments of conviction and aver that they believed that in the exercise of sound judgment it was their duty to do so. Their answers deny want of jurisdiction in them to enter the orders complained of. Relator has demurred to those answers, and thus and issue of law is made up. The cases have been consolidated for the purpose of decision.
An examination of the petitions filed under section 89 of the Practice Act discloses that in each of the petitions it is averred that the defendant was not represented by counsel. In some it is averred that the existence of evidence of which they did not know could be produced to show them to be innocent, and that by ignorance and mistake on their part they were not able to make a defense, and being without advice of counsel and unable to make their defense they ask that a rehearing of the cause be had.
The only question presented in each case is whether respondent had jurisdiction and authority to set aside the judgment of conviction and sentence imposed. Section 89 of the Practice Act () abolishes the common-law writ of error coram nobis and provides that errors in fact committed in proceedings of any court of record, and which by the common law could have been corrected by that writ, may be corrected in the court in which the error was committed, on a motion in writing or petition, at any time within five years after rendition of the final judgment, upon reasonable notice.
Section 21 of the Municipal Court Act () provides that there shall be no stated terms of that court, and that every judgment, order, or decree of that court, final in its nature, shall be subject to being vacated and set aside, provided a motion to so vacate or set aside the same shall be entered within thirty days after the entry of such judgment, order or entry of decree, and if such motion shall not be made, the judgment, order, or decree shall not be vacated, set aside, or modified except on appeal or writ of error or a bill in equity, or by a petition to the municipal court setting forth the grounds for vacating or modifying the same which would be sufficient to cause the same to be vacated, set aside, or modified by a bill in equity, provided that all errors in fact in the proceedings in such case which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside in the manner provided by law for similar cases in the circuit court.
Neither section 21 of the Municipal Court Act nor section 89 of the Practice Act abolishes the essentials of the proceeding under the common-law writ of error coram nobis (People v. Sullivan, 339 Ill. 146, 171 N. E. 122;Mitchell v. King, 187 Ill. 452, 55 N. E. 637,58 N. E. 310), but errors such as might have been corrected by that writ may now be reached by motion or petition. Such motion or petition is the commencement of a new suit. The error in fact which may be assigned in such proceeding must be of some fact unknown to the court at the time the judgment was rendered, as well as one which would have precluded the rendition of the judgment had it been within the knowledge of the court at the time. The error of fact alleged must be one not appearing on the face of the record or contradicting the finding of the court. People v. Sullivan, supra; McCord v. Briggs & Turivas, 338 Ill. 158, 170 N. E. 320;Harris v. Chicago House Wrecking Co., 314 Ill. 500, 145 N. E. 666;People v. Noonan, 276 Ill. 430, 114 N. E. 928.
A motion or petition made under section 89 of the Practice Act, and likewise under section 21 of the Municipal Court Act, stands as a declaration in a new suit. The issue made and the judgment sought concern only the setting aside of the original judgment entered. The order made on such motion is a final order and directly reviewable as a final judgment. Cramer v. Commercial Men's Ass'n, 260 Ill. 516, 103 N. E. 459;Domitski v. American Linseed Co., 221 Ill. 161, 77 N. E. 428. It is generally recognized that the proceedings under a motion or petition in the nature of a writ of error coram nobis are civil in their nature. People v. Crooks, 326 Ill. 266, 157 N. E. 218;State v. Calhoun, 50 Kan. 523, 32 P. 38,18 L. R. A. 838, 34 Am. St. Rep. 141; 2 R. C. L. § 266. The burden is on the one seeking to set aside the judgment, to prove by a preponderance of the evidence the facts alleged in his petition or motion. Errors of fact which may be availed...
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