People ex rel. Holbrook v. Petit
| Decision Date | 17 February 1915 |
| Docket Number | No. 9835.,9835. |
| Citation | 107 N.E. 830,266 Ill. 628 |
| Parties | PEOPLE ex rel. HOLBROOK v. PETIT, Judge, et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Original petition by the People, on the relation of Roy C. Holbrook, for a writ of mandamus against Adelor J. Petit, Judge, and others. Writ awarded.Morton S. Cressy, Thomas J. Dawson, and Heldman, Jacobson & Graff, all of Chicago, for petitioner.
Frank S. Righeimer, John S. Miller, and Holdom, Manierre & Pratt, all of Chicago, for defendants.
At the October term, 1914, the petition was filed in this case by leave of the court, praying for a writ of mandamus against the defendant Adelor J. Petit, judge of the circuit court of Cook county, commanding him to expunge a certain order made by him on December 4, 1913, in a case in the said circuit court between Roy C. Holbrook, the petitioner, and L. C. Lawton, who was made a respondent to the petition because of his interest in the subject-matter. The respondents having answered, the petitioner demurred to the answers, and the cause has been submitted for decision on the demurrer.
From the pleadings it appears that on June 14, 1913, the petitioner, Roy C. Holbrook, brought a suit in assumpsit in the circuit court of Cook county against the respondent L. C. Lawton and the Dutch Guiana Culture Company. A summons was issued and served on Lawton, and a declaration consisting of the common counts was filed. No summons was issued for the Dutch Guiana Culture Company, and at the August term Lawton was defaulted. The petition avers that on October 17, 1913, the plaintiff in the suit before the respondent Adelor J. Petit moved to dismiss the Dutch Guiana Culture Company, and an order of dismissal was entered; that thereupon a jury was called, evidence was heard, a verdict for $9,500 damages was returned, and judgment was rendered on the verdict against the defendant Lawton for $9,500, and costs. The following entries appear in connection with these proceedings:
(1) In the minute book of Judge Petit's minute clerk:
(2) In the docket kept by the clerk:
Petit. Oct. 17, 1913. Jury verd. fdg. issue for pltf. das. at $9500.00 & costs. Jdg. on fdg.
(3) In the judgment docket:
+----------------------------------+
¦October 17, 1913.¦ ¦
+-----------------+----------------¦
¦ ¦ ¦ads. ¦
+------+----------+----------------¦
¦ ¦ ¦Roy C. Holbrook.¦
+------+----------+----------------¦
¦Action¦Assumpsit ¦ ¦
+------+----------+----------------¦
¦Record¦Law ¦ ¦
+------+----------+----------------¦
¦Page ¦ ¦289 ¦
+------+----------+----------------¦
¦Amount¦$9500. ¦ ¦
+----------------------------------+
(4) On the wrapper of the files of the case:
Petit. Oct 17, 1913. Jury verd. fdg. iss. for plts. ass. Pltiffs. das. at $9500.00 & costs. Judg. on verd.
No record of the judgment had been written by the clerk in the court record prior to December 4, 1913. An execution issued November 18th was served on Lawton November 20th, and on December 4th Lawton made a motion to expunge the entries of the clerk on the wrapper of the case, in the clerk's minute book, in the judgment docket, and in the docket kept by the clerk, or, in the alternative, if the court should hold the judgment to be valid, that the judgment of October 17, 1913, for certain alleged errors of fact occurring in the proceedings, be vacated and set aside. Upon the filing of the motion Judge Petit entered an order that the execution in the case be stayed until further notice, and that the clerk be ordered to spread of record no further orders in the case until further notice. It is this order which the petition prays to have expunged. Subsequent proceedings before Judge Petit are set out in the answer, but they are not material to the decision of the case.
The memoranda set out in the pleadings did not constitute the record of a judgment. They are no part of the record of the court. The rendition of a judgment is the act of the court, and can ordinarily be proved only by the record. The judgment exists, however, from the time the court acts, even though the entry of the judgment may not have been formally written by the clerk, and it is not necessary to the validity of an execution that the judgment shall have been formally written upon the record of the proceedings of the court before the execution is issued. Weigley v. Matson, 125 Ill. 64, 16 N. E. 881,8 Am. St. Rep. 335. The statute contemplates that the judgments, decrees, and orders of the court may not be immediately entered of record, directs the clerk to enter them before the final adjournment of the term, or as soon thereafter as practicable, and provides for the imposition of a fine for a failure to enter of record any order by or before the next term after it is rendered. Hurd's Stat. 1913, c. 25, §§ 14, 15. We may take judicial notice that the record of the proceedings of the court is frequently not written up during the term, and it is neither customary nor necessary to await such writing before execution may issue.
There is no disagreement as to what occurred before Judge Petit on October 17, 1913. The petition and answer set forth the entries then made without substantial difference. If they constitute a sufficient memorandum from which the clerk could formally write out the judgment pronounced by the court, or even without such entries if the judgment was actually rendered, the clerk was then authorized to issue an execution. It was his duty to enter of record the judgment so rendered, but his failure to do so within any particular time did not make invalid the...
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...v. Kamrowski , 412 Ill. 383, 387, 107 N.E.2d 725 (1952) ; Bristow , 391 Ill. at 109–10, 62 N.E.2d 545 ; People ex rel. Holbrook v. Petit , 266 Ill. 628, 631–32, 107 N.E. 830 (1915). Any action taken by a circuit clerk that purports to alter the judgment of the court is invalid. See Hall , 3......
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