People ex rel. Kerner v. Keeney

• Decision Date: 18 March 1948
• Docket Number: No. 30451.,30451.
• Citation: People ex rel. Kerner v. Keeney, 399 Ill. 611, 78 N.E.2d 252 (Ill. 1948)
• Parties: PEOPLE ex rel. KERNER, U. S. Attorney, v. KEENEY, Judge.
• Court: Illinois Supreme Court

399 Ill. 611

78 N.E.2d 252

PEOPLE ex rel. KERNER, U. S.Attorney,

v.KEENEY, Judge.

No. 30451.

Supreme Court of Illinois.

March 18, 1948.

Original mandamus proceeding by the People, on the relation of Otto Kerner, Jr., United States Attorney, against Russell W. Keeney, Judge, to compel the respondent to expunge from the record of the county court of Cook county an order denying petioner leave to file appearance as counsel in behalf of a defendant.

Writ awarded.Otto Kerner, Jr., U. S. Atty., of Chicago (John Peter Lulinski and Raymond T. Lopata, both of Chicago, of counsel), for petitioner.

Marvin Wallach, of Chicago, for respondent.

MURPHY, Chief Justice.

This is an original proceeding in mandamus.Petitioner, Otto Kerner, Jr., the United States Attorney for the Northern District of Illinois, seeks this writ of mandamus to compel the respondent, Russell W. Keeney, as presiding judge of the county court of Cook County an order denying perecords of that court, as void for want of jurisdiction to enter it, an order entered by him as such judge, on October 15, 1947, in the case pending before him entitled Lighting Products, Inc., an Illinois corporation, plaintiff, vs. George A. Fuller Co., a New Jersey corporation, defendant.The order sought to be expunged denied petitioner leave to file his appearance as counsel in behalf of the defendant corporation.Respondent, by counsel, has filed a motion to strike the petition for writ of mandamus, which motion is treated as a demurrer, and the case is considered upon the briefs filed and the exhibits attached thereto.

It appears that the George A. Fuller Co. entered into a cost-plus-fixed-fee contract with the War Department to erect a war plant at Decatur, Illinois.Subsequently, in January, 1944, the Fuller Co. granted a contract in the amount of $33,112.95 for certain lighting fixtures to the Markstone manufacturing Co.However, Markstone was unable to complete the contract and assigned all of its right, title and interest thereunder to Lighting Products, Inc.At the conclusion of the job Lighting Products, Inc., claimed that certain switches were to be returned by the Fuller Co. in exchange for a different type furnished; that certain credits were to be granted to the Fuller Co. and that certain claims remained unadjusted.As a consequence of the disagreement it filed a complaint in the county court of Cook County alleging the Fuller Co. owed Lighting Products, Inc., the sum of $1659.36 for which recovery was sought.The Fuller Co. denied a privity of contract with Lighting Products, Inc., and claimed that its only contract was with Markstone and that Markstone had been paid in full.

The issues having been formed, the case was tried before the county court of Cook County.At the close of the plaintiff's case a motion for a directed verdict by the defendant was allowed and the suit was dismissed.From this order Lighting Products, Inc., appealed to the Appellate Court for the First District.Lighting Products, Inc. v. George A. Fuller Co., 331 Ill.App. 618, 73 N.E.2d 788.In a memorandum opinion, that court, after a review of the evidence, found that Lighting Products, Inc., had established a prima facie case of privity of contract between it and the Fuller co. and held that the trial court erred in allowing the motion for a directed verdict for the defendant.That court then reversed the judgment and remanded the cause for a new trial.At this point the Attorney General of the United States directed the United States District Attorney, Northern District, to intercede as attorney for the Fuller Co. Private counsel for the Fuller Co. withdrew and the petitioner filed his motion for leave to appear in substitution of private counsel, in behalf of the Fuller Co., to which Lighting Rpoducts, Inc. objected.Respondent, as the presiding county judge, after hearing the arguments, denied the petitioner the right to intercede in behalf of the Fuller Co., on the theory that there was no privity of contract between Lighting Products, Inc., and the United States government, and that the Fuller Co. was not an agency of the United States government.The respondent at the time pointed out that he was not denying the United States District Attorney the right to intercede or appear in behalf of the government of the United States, as such, or to defend such interests of the United States as might be shown during the course of litigation.This proceeding now follows.

Both the petitioner and the respondent rely upon the recent decision of this court in People ex rel. Woll v. Graber, 394 Ill. 362, 68 N.E.2d 750.Each sees that case as analogous to the case at bar and favorable to his position.In the Graber case an aggrieved contractor brought suit against one Francis R. Johlie and others, charging a conspiracy.Johlie was the Chief Civilian Naval Inspector, 9th Naval District, during World War II.The contractor claimed that as a result of an alleged conspiracy, its war products were rejected by the Naval District, and that in conspiring to reject their products Johlie had been acting in his individual capacity, and further that at the time of the suit Johlie was no longer employed by the Navy Department....