People Ex Rel. Parnell Munson v. Joseph E. Gary.

• Decision Date: 31 January 1883
• Citation: 105 Ill. 264,1883 WL 10126
• Parties: THE PEOPLE ex rel. Parnell Munsonv.JOSEPH E. GARY.
• Court: Illinois Supreme Court

105 Ill. 264

1883 WL 10126 (Ill.)

THE PEOPLE ex rel. Parnell Munson

v.JOSEPH E. GARY.

Supreme Court of Illinois.

Filed at Ottawa Jan. 31, 1883.

OPINION TEXT STARTS HERE

This was an application in this court for a peremptory writ of mandamus, to compel the respondent, Joseph E. Gary, one of the judges of the Superior Court of Cook county, to sign and seal a bill of exceptions tendered to him. The facts of the case are stated in the opinion of the court.

Mr. RANDALL H. WHITE, for the petitioner:

If the answer does not deny or confess and avoid all the material allegations of the petition, those not so denied or confessed and avoided must be taken as true. Greater certainty is required in the return,--now called answer,--than in a plea in bar, and every intendment is made against the answer, when it does not answer the important facts. People v. Ohio Grove Town, 51 Ill. 195; People v. Kilduff, 15 Id. 502; State v. McLean, 9 Wis. 207; High on Extraordinary Remedies, sec. 492; Tapping on Mandamus, 349, 352, 370; Moses on Mandamus, 210.

Ordinary rules of pleading applicable in mandamus: Silver v. People, 45 Ill. 224.

If a bill of exceptions presented does not state the facts truly and fairly, it is the duty of the court to point out wherein it is incorrect, and to correct the same. Seibright v. State, 2 W. Va. 591.

If the judge can not remember the evidence, he may examine the witnesses as to what they testified to, and in this or some other mode determine the facts. People v. Williams, 91 Ill. 91; People v. Jameson, 40 Id. 96; Weatherford v. Wilson, 2 Scam. 256.

As to the necessity and purpose of preserving the evidence in a bill of exceptions: Bandruff v. Craig, 14 Ill. 394; Kinney v. People, 3 Scam. 357; Rogers v. Hall, Id. 5; McLaughlin v. Walsh, Id. 185; Bowder v. Johnson, Breese, 61.

Petitioner could not know he would need a bill of exceptions until the motion for a new trial was overruled. Goodrich v. Cook, 81 Ill. 41.

Where a party does all he can to have a bill of exceptions signed, he should not be prejudiced. Underwood v. Hossack, 40 Ill. 98.

The application for a bill of exceptions at the time the motion for a new trial was overruled, was in apt time. Hearson et al. v. Graudine, 87 Ill. 116.

Messrs. TENNEY, FLOWER & CRATTY, for the respondent:

A bill of exceptions should be signed and settled only at the term at which a cause was tried, or within such time as is provided for by order of court entered at the trial term. Rev. Stat. chap. 110, sec. 60; Evans v. Fisher, 5 Gilm. 453; Dickhut v. Durrell, 11 Ill. 72; Hance v. Miller, 21 Id. 636; Neece v. Haley, 23 Id. 416; Hassinger v. Rye, 10 Mo. 156; Ruble v. Thomasson, 20 Maine, 263; Lathrop v. Page, 26 Mo. 119; Vandever v. Griffith, 2 Metc. (Ky.) 425.

The motion to vacate the judgment, and for a new trial, entered by petitioner at the December term, did not operate to carry the case over to the next term, so as to give the court control over the judgment, and a right to settle a bill of exceptions at that term. In all the cases in this court where a motion to set aside a judgment has been acted upon at a term subsequent to that at which the judgment was entered, such motion has been expressly continued to that term. Windett v. Hamilton, 52 Ill. 180; Toledo, Peoria and Warsaw Ry. Co. v. Eastburn, 79 Id. 140; Combs v. Steele, 80 Id. 101; Hibbard v. Mueller, 86 Id. 256; Hearson v. Graudine, 87 Id. 115; Dent v. Davison, 52 Id. 109. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a petition for mandamus, to compel Joseph E. Gary, one of the judges of the Superior Court of Cook county, to sign and seal a bill of exceptions in a certain cause which had been tried before him at the December term of court, 1879.

It appears from the record that the cause was tried in the absence of petitioner, who was defendant in the action, although he had a plea to the merits on file, and judgment was rendered against him for $803.32, December 17, 1879. On the 24th day of December following, and at the same term of court, petitioner, in open court, entered a motion to vacate the judgment, and for a new trial. This motion remained pending and undisposed of in the Superior Court at the end of the December term, and by operation of law stood continued to the next term of the court. It also appears that on account of the absence of Judge Gary from the Superior Court, holding the Criminal Court, in the month of January, the motion could not be disposed of before the 24th day of January, 1880, at which time the motion was, by direction of the judge, set for a hearing. On the day named, the judge not, however, being able to attend, by order of court the motion was continued until January 30, when the judge again being unable to attend, by order of court the motion was continued until February 2, 1880, when the parties appeared, the motion was heard and overruled, and petitioner then and there excepted to the decision and judgment of the court. It also appears that petitioner, at the time the motion was overruled, prayed an appeal, and obtained an order of court giving him twenty days within which to prepare and present a bill of exceptions, and within the time allowed, and on the 14th of February, a bill of exceptions, purporting to contain all the evidence heard on the trial of the cause, was presented to the judge, who declined to sign the same, and then and there intimated to petitioner that he would not sign any bill of exceptions that contained the evidence given upon the trial. Petitioner then obtained an order of court extending the time twenty days, from the 14th day of February, to present a bill of exceptions. It also appears that within the time allowed, and on the 28th day of February, petitioner presented a bill of exceptions, which purported to contain the evidence heard on the trial, to the judge, and also produced the witnesses who had testified on the trial of the cause, and offered to prove by them what the evidence was on the trial of the cause; but the judge refused to hear such evidence, and refused to sign any bill of exceptions which purported to contain the evidence heard on the trial.

The grounds of the refusal to sign a bill of exceptions are set out in the answer of respondent, substantially as follows: “That when said relator presented for the first time a bill of exceptions for settlement and signature by this respondent in the said case of Charles B. Farwell and others against said relator, and on or about the 14th day of February, 1880, respondent did not then remember what evidence was given upon the trial of said cause; that he took no notes or memoranda of such evidence, nor was any stenographic or other report thereof taken, so far as respondent is informed, and that no statement or memorandum thereof, claimed or purporting to have been taken at the trial of said cause, has ever been presented to respondent, or in any way brought to his notice; that at the time respondent, as one of the judges of the Superior Court of Cook county, overruled and denied the motion made by relator for a new trial in the said case of Farwell and others against him, this respondent had no distinct recollection as to what evidence was given upon the trial of said cause, and was unable to remember the same so as to predicate any judicial action whatsoever thereon; that said cause had been tried ex parte more than two months prior to that time, and being undefended did not impress itself upon the memory of this respondent...