People ex rel. Jones v. Chytraus
| Citation | 55 N.E. 666,183 Ill. 190 |
| Parties | PEOPLE ex rel. JONES v. CHYTRAUS. |
| Decision Date | 18 December 1899 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Petition by the people, on the relation of Frances Jones, for a writ of mandamus against Alexander Chytraus. The petition was dismissed by the appellate court, and relatrix appeals. Affirmed.
Henry M. Coburn, for appellant.
Allen G. Mills, for appellee.
This is an appeal from a judgment of the appellate court dismissing a petition by appellant against appellee for a writ of mandamus. The relatrix brought a suit against the St. Luke's Hospital in the superior court of Cook county, which was dismissed by appellee; he being at the time the presiding judge of said court. Subsequentlya motion, based on affidavits, was made to set aside that order, which was overruled. The plaintiff prayed and was allowed an appeal to the appellate court for the First district, and in due time presented a bill of exceptions to the judge to be signed and sealed by him. At presented, it contained statements of counsel for and against allowing the motion to set aside the order of dismissal, and also remarks of the court in rendering his decision. These statements the judge struck out, on the ground that they were not properly matters to be incorporated in said bill of exceptions, to which ruling an exception was taken. The bill of exceptions as signed was then incorporated into the record, which was filed in the appellate court. Thereafter this petition was filed to compel the judge to sign a bill containing the statements stricken out. A writ of mandamus was ordered, and the respondent appeared and filed his answer; stating, among other things, in substance, that he refused to sign the bill as presented because he understood the matters stricken out were no proper part thereof. To this answer the petitioner filed a demurrer, which the court carried back to, and sustained as to, the petition; and to reverse that judgment this appeal is prosecuted.
This ruling of the appellate court was clearly right. The only mistake made by that court was in ordering the writ. The petition showed no sufficient grounds for that order. It was proper to carry the demurrer to the answer back to the petition. Section 4 of chapter 87 of the Revised Statutes (‘Mandamus') provides, ‘The petitioner may plead to or traverse all or any of the material facts contained in the answer, or demur thereto, to which the defendant shall reply, take issue or demur, and like proceedings shall be had as in other cases at law.’ The act of settling, signing, and sealing bills of exception is, in its nature, both judicial and ministerial. Determining the correctness of such a bill is judicial, while the mere act of signing and settling is ministerial. Hake v. Strubel, 121 Ill. 321, 12 N. E. 676. The judge must determine judicially, in the first instance, what the bill of exceptions...
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