People ex rel. Kennon v. Buy

• Decision Date: 21 October 1922
• Docket Number: No. 14429.,14429.
• Citation: 136 N.E. 870,305 Ill. 11
• Parties: PEOPLE ex rel. KENNON v. LA BUY.
• Court: Illinois Supreme Court

305 Ill. 11

136 N.E. 870

PEOPLE ex rel. KENNON

v.LA BUY.

No. 14429.

Supreme Court of Illinois.

Oct. 21, 1922.

Petition by Newell K. Kennon, in the name of the People, for mandamus against Joseph S. La Buy.

Writ denied.Peden, Graydon, Kahn & Murphy, of Chicago (Harry A. Kahn, of Chicago, of counsel), for relator.

Max C. Liss, of Chicago, for defendant.

CARTWRIGHT, J.

By leave of court Newell K. Kennon filed his petition in the name of the people of the State of Illinois, praying for a writ of mandamus directed to the defendant, Joseph S. La Buy, one of the judges of the municipal court of Chicago, commanding him to expunge from the records of the court an order setting aside a judgment of the court entered in the case of Newell K. Kennon against Delia Burke, The petition was answered, and a replication filed forming issues of fact, which were referred to a commissioner to take the evidence and report the same to the court. The evidence has been taken and returned and the cause submitted for decision.

The facts set forth in the petition as entitling the relator to the writ are as follows:

On May 26, 1921, the relator, Newell K. Kennon, was the owner of premises in Chicago known as 3963 Ellis avenue, and on that day he instituted a forcible entry and detainer suit against Delia Burke for possession of the premises. There was a trial by the court on June 9, 1921, resulting in a finding that Delia Burke was guilty of withholding the premises, and a judgment for possession, with an order that the writ of restitution be stayed to September 30, 1921, and the new rental should be $80 a month. On September 22, 1921, the defendant made a notation of record of a motion of Delia Burke to vacate the judgment, and on September 29, 1921, the defendant, without witnesses being sworn or evidence heard, entered the following order:

‘Motion defendant heretofore entered to vacate order June 9, 1921, sustained. Trial by court finding defendant, Delia Burke, not guilty. Judgment on finding against plaintiff, Newell K. Kennon.’

On September 30, 1921, the attorneys for the relator moved the defendant for an order expunging from the record the orders of September 22 and September 29, and on October 26, 1921, the motion to expunge the orders was overruled. The petition alleged that the order staying the writ of restitution was void because Delia Burke had not given a bond to pay the rental fixed, and the provision of the Forcible Entry and Detainer Act (Hurd's Rev. St. 1921, c. 57) for such stay was a violation of constitutional rights. The petition asked for the writ commanding the defendant to expunge the orders of September 22 and 29, and, if the court should hold the Forcible Entry and Detainer Act unconstitutional, that the part of the judgment entered on June 9 staying the writ of restitution be also expunged.

The defendant answered that, upon the trial of the forcible entry and detainer suit on June 9, 1921, evidence for the plaintiff was introduced that the relator, Newell K. Kennon, was the owner of the premises; that notice had been served on Delia Burke, who had no lease, written or oral, but was a tenant from month to month, terminating the tenancy; that the evidence for Delia Burke was that she had rented the premises from Angeline Strong, who told her that she could stay in the premises until April 30, 1922, at $80 per month; that the plaintiff testified in rebuttal that Angeline Strong had no interest in the property, legal or equitable; that she was not his agent and had no authority to make a lease for any length of time or do any other act or acts which would bind the plaintiff; that upon consideration of this evidence he entered judgment, and upon representations as to the condition of Delia Burke, her age and means of making a living, he stayed the writ of restitution until September 30, 1921, and fixed the rent at $80 per month, in accordance with the Forcible Entry and Detainer Act. With respect to the subsequent proceedings, the answer alleged that on September 22, 1921, a written notice was presented to the defendant, under section 21 of the Municipal Court Act (Hurd's Rev. St. 1921, c. 37, § 284), in the form of an affidavit, requesting him to vacate the judgment for possession; that on September 29, 1921, there was a hearing of that petition, and among other things there was introduced in evidence a certified copy of a deed executed by Kennon on January 20, 1919, granting a life estate in the premises to Angeline Strong, filed for record on July 5, 1921, after the judgment of June 9. From this evidence the defendant was satisfied that a fraud had been practiced on Delia Burke...