People ex rel. Pignatelli v. Ward

• Decision Date: 21 November 1949
• Docket Number: No. 30964.,30964.
• Citation: 404 Ill. 240,88 N.E.2d 461
• Parties: PEOPLE ex rel. PIGNATELLI v. WARD.
• Court: Illinois Supreme Court

404 Ill. 240

88 N.E.2d 461

PEOPLE ex rel. PIGNATELLI

v.WARD.

No. 30964.

Supreme Court of Illinois.

Sept. 22, 1949.

Rehearing Denied Nov. 21, 1949.

The People, on the relation of Charles Pignatelli, filed a petition in the Supreme Court for a writ of mandamus directing Harold Ward, Judge of the Superior Court, to certify a proffered bill of exceptions.

The court, Crampton, J., held that the respondent had properly refused to sign the bill of exceptions because not timely tendered to him and because orders of another judge purporting to extend time for filing bill of exceptions and reciting the filing of the bill of exceptions in open court were nullities in view of undisputed proof that respondent as trial judge was available, and denied the petition.Roman E. Posanski, Chicago, (Wm. Scott Stewart, of Chicago, of counsel), for petitioner.

Harold Ward, pro se(John S. Boyle, State's Attorney, and John T. Gallagher, of Chicago, of counsel), for respondent.

CRAMPTON, Justice.

The petitioner filed an original petition in this court for a writ of mandamus directed to the respondent who is a judge of the superior court of Cook County, and who, as ex-officio judge of the criminal court of that county, presided over the trial of petitioner.There is involved the question of the right to require the certification of a proffered bill of exceptions.

Petitioner was convicted on a felony charge and respondent entered judgment against him on August 13, 1948.By rule 70A of this court(Ill.Rev.Stat.1947, chap. 110, par. 259.70A)the petitioner was required to file his certified bill of exceptions not later than fifty days following the entry of judgment.This made the last day October 2, 1948.On September 20, 1948, the petitioner appeared before James McDermott who was the chief justice of the criminal court.The transcript of the record simply shows this entry: ‘September 20.Judge McDermott.Parties present by counsel.Bill of exceptions presented in open court and leave granted to file in 30 days.’On October 18, 1948, the following entry was made by Judge McDermott: ‘Parties present.Bill of exceptions filed in open court.Leave given to withdraw bill of exceptions.’

The withdrawn bill of exceptions was turned over to the assistant State's Attorney who had charge of the case against petitioner, for examination in respect to completeness and correctness as a condition precedent to joining in any stipulation to submit the original to this court.This was done to comply with a requirement laid down by the State's Attorney.The examination was made and the bill of exceptions was approved by that official.

Thereafter, on December 3, 1948, the petitioner appeared before the respondent as the trial judge and asked for his certification of the bill of exceptions.On December 8, the respondent conducted a hearing and all the involved parties were present and were heard at length.He refused his certification on the ground he lacked jurisdiction to certify, basing his stand upon the decision of this court in People v. Kidd, 401 Ill. 230, 81 N.E.2d 892.The petitioner urged then, and now urges, the inapplicability of that decision because of the alleged material difference in facts.

The verified petition contains this averment: ‘On September 20, 1948, Judge Ward had been transferred back to the civil courts and upon diligent inquiry was not to be found in Cook County.Judge Ward has been assigned to the civil courts since September 1, 1948, where he now sits.’The verified answer of respondent in respect to the above reads, ‘This respondent admits that he was not holding court in either the Criminal Court or the Superior Court of Cook County on September 20, 1948, but denies that he was absent from the City of Chicago, County of Cook, Illinois, or that he was not available or that he could not be found in Cook County on September 20, 1948 or on any day between September 20, 1948 and October 20, 1948, or between August 13, 1948 and October 20, 1948 except for the following periods: Absent from October 6, 1948 to October 9, 1948, and from October 13, 1948 to October 16, 1948.This respondent denies that any effort was made to contact him or to obtain a legal order from him * * * between August 13, 1948 and October 20, 1948 which was the last day for approving and filing a bill of exceptions in said case.’To this answer no reply was ever made by the petitioner.

The statute regulating the practice in mandamus cases is inapplicable to such practice in this court, but we have held that practice here will be made to conform with the practice in trial courts when possible.People ex rel. Huff v. Palmer, 356 Ill. 563, 191 N.E. 199.A proceeding for a writ of mandamus is an action at law, the pleadings therein being governed by the same rules applying to other actions at law.People ex rel. Meade v. Board of Review, 329 Ill. 388, 160 N.E. 755.The petition stands as a complaint and must present a prima facie case, and the return stands as an answer thereto.People ex rel. Harless v. Hatch, 33 Ill. 9;Silver v. People ex rel. Whitmore, 45 Ill. 224.Mandamus is an extraordinary remedy, and the petitioner must adduce proof in support sufficient to show a clear right to the writ.People ex rel. Dunderdale v. City of Chicago, 327 Ill. 62, 158 N.E. 424.Facts charged in the petition but denied by the respondent must be proved by the petitioner; if not denied they stand admitted.Facts alleged in the answer in avoidance of the charge made when not denied by the petitioner are admitted, but when denied they must be proved by the respondent.People ex rel. Yarrow v. Lueders, 287 Ill. 107, 122 N.E. 374.This court will not use a writ of mandamus to compel a party to perform an act unless it is affirmatively made to appear that it is his clear duty to do so; the petitioner must establish every material fact necessary to show the plain duty of the respondent before courts will interfere.Bengson v. City of Kewanee, 380 Ill. 244, 43 N.E.2d 951.No intendments will be indulged in to support the issuance of the writ.

The petitioner does not contend the respondent was without the district (Cook County,)-just that he could not be found therein by diligent inquiry.The transcript of the proceedings before the respondent on December 3 and 5 discloses the extent of the inquiry made for respondent, i.e., on September 20the...