People ex rel. Lax v. Ehler

• Decision Date: 21 October 1933
• Docket Number: No. 21677.,21677.
• Citation: 353 Ill. 595,187 N.E. 630
• Parties: PEOPLE ex rel. LAX, v. EHLER, Municipal Court Judge.
• Court: Illinois Supreme Court

353 Ill. 595

187 N.E. 630

PEOPLE ex rel. LAX,

v.EHLER, Municipal Court Judge.

No. 21677.

Supreme Court of Illinois.

Oct. 21, 1933.

Mandamus proceeding by the People, on the relation of John F. Lax, against Theodore F. Ehler, Judge of the Municipal Court of Chicago.

Writ denied.J. Edward Jones, of Oak Park, and John G. Maloney, of Chicago (John F. Lax, of Chicago, of counsel), for petitioner.

Cohen & Berke, of Chicago, for respondent.

JONES, Justice.

John F. Lax, relator, filed a petition in this court for a writ of mandamus against Theodore F. Ehler, one of the judges of the municipal court of Chicago, commanding him to expunge an order vacating a judgment. The petition recites that the cause of Lax v. Johnson et al. No. 2029941, was instituted in the municipal court on August 1, 1930; that all defendants were defaulted October 9, 1930, for failure to file affidavits of merit; that on November 6, 1930, the defaults were set aside; that on May 17, 1932, the cause was again reached, and after an ex parte trial by the court judgment was rendered and an execution was issued and served upon defendants; that on July 8, 1932, being more than thirty days after the entry of such judgment, the court vacated the judgment and set the cause for trial on October 5, 1932; that thereafter relator appeared specially before respondent for the purpose of questioning the jurisdiction of the court to enter the order of July 8 and for making a demand that it be expunged from the record; and that the demand was made and respondent refused to expunge the order. It is alleged that the court was without jurisdiction to set aside the judgment because no motion to vacate it was made within thirty days after its entry, ‘and no proceedings in chancery or service of summons upon the parties or diligence was shown on the part of the defendants.’

Respondent's answer admits the setting aside of the judgment of May 17. It alleges that on July 8, 1932, upon due notice to the attorney for relator, a petition was presented to respondent, as judge, alleging that, after a trial in said cause on July 11, 1931, plaintiff therein took a voluntary nonsuit; that the order allowing a nonsuit was afterwards vacated, and the cause was reassigned to the chief justice of the municipal court, who set it for trial on July 17; that on said day the files were missing, and the plaintiff, Lax, and Johnson, one of the defendants, orally entered into an agreement that, when the files are located, each will notify the other, or his counsel, of the time and place set for trial; that on several occasions since that time they reiterated their agreement; that without petitioner's knowledge said matter came on call April 4, 1932, and was set for hearing before respondent on May 17, 1932; that plaintiff knew of the time and place said cause was set, but, contrary to the several agreements, failed to notify Johnson or petitioner; that on May 17, 1932, he caused an ex parte judgment to be entered against the several defendants, and that defendants have a good and meritorious defense as shown by the affidavits and pleadings. The answer further sets out that, upon consideration of the petition under and pursuant to the provisions of section 21 of the Municipal Court Act, respondent took jurisdiction of the cause and entered the order vacating the judgment. Relator has filed a demurrer to respondent's answer.

Section 21 of the Municipal Court Act (Smith-Hurd Rev. Stat. 1931, c. 37, § 376, p. 946) provides: ‘That there shall be no stated terms of the Municipal Court. * * * Every judgment, order or decree of said court final in its nature shall be subject to be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court during the term at which the same was rendered in such circuit court, provided a motion to vacate, set aside or modify the same be entered in said Municipal Court within thirty days after the entry of such judgment, order or decree. If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity:...