People Ex Rel. Hugh Maher v. Williams
| Decision Date | 30 September 1878 |
| Citation | 1878 WL 10235,91 Ill. 87 |
| Parties | THE PEOPLE ex rel. Hugh Maherv.ERASTUS S. WILLIAMS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
This was an application in this court, by the relator, for a writ of mandamus to compel Erastus S. Williams, the respondent, to sign a certificate of evidence in a certain chancery suit tried before him. The opinion states all the material facts.
Mr. JESSE COX, JR., for the relator.
Mr. JOHN J. KNICKERBOCKER, and Mr. GEO. W. SMITH, for the respondent.
This was a petition for a writ of mandamus to compel Erastus S. Williams, one of the judges of the circuit court of Cook county, to sign and seal a certificate of evidence in a certain cause in chancery which had been tried before him. An answer was filed to the petition, to which a demurrer was interposed. The question, therefore, to be determined is, whether the facts set up in the answer constitute a legal defence to the case made in the petition.
It appears, from the answer, that the final decree in the chancery cause in which the certificate of evidence is desired, was filed on the 29th day of June, 1875, at which time an appeal was prayed by the petitioner, and granted upon his filing bond in the sum of $300 and a certificate of evidence within 30 days. The bond was filed and approved within the time allowed, but before the expiration of the 30 days, and on or about the 16th day of July, respondent left the city of Chicago and the State of Illinois for “his summer vacation,” and remained abroad until the 18th day of September. After his return, and in the month of September, petitioner's counsel called respondent's attention to the fact that the certificate of evidence had not been signed. Respondent then requested petitioner's counsel to notify the counsel interested on the other side of the case, when he desired to present the certificate of evidence for respondent's signature.
It also appears, from the answer, that on the 26th day of October the certificate was presented for signature. All the parties in interest being present, the counsel for defendant in the chancery cause objected to the certificate being signed, and claimed petitioner had lost his right by laches. Respondent, however, overruled the objection, and announced that he would sign a certificate of evidence whenever he was satisfied the one presented was correct. Time was then given counsel for defendant to examine the certificate, and it was not again presented until the 25th day of February, 1876, when respondent refused to sign the same, because it was incorrect, but notified counsel for petitioner if they would correct it so that it would conform to the facts, he would still sign it.
It also appears, from the answer, that again, on the 11th day of March, 1876, a certificate of evidence was presented, but the matter was postponed to allow counsel for defendant in the chancery case an opportunity to examine it, and afterwards, and on the 17th day of May, a certificate of evidence was again presented, but defects and errors appearing in the same, respondent declined to sign it, but announced, if he could be satisfied by a consultation with B. G. Caulfield, one of the attorneys who was present when the cause was tried, what the evidence in the case was, he would still sign a certificate of evidence.
On the 26th day of December, 1876, the certificate of evidence was again presented, but defendant refused to sign it, upon the ground and for the reason that he was not satisfied the same was a true and correct transcript of the evidence.
Under the order of the court granting the appeal, the petitioner had 30 days in which to prepare a certificate of evidence and present it to the judge to be signed, but before the time expired the judge left the State, and the petitioner was thus prevented from appearing before the judge and obtaining his signature to the certificate. Under such circumstances, the petitioner ought not to be prejudiced on account of the absence of the judge from the State. Laches ought not to be imputed to him where the failure to comply with the order was occasioned by the act of the judge, over whom he had no control.
It appears that some time after the judge returned counsel for petitioner called his attention to the matter, and upon being informed that counsel representing the defendant in the case would have to be notified, it was but a...
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