People ex rel. Sayer v. Garnett

• Citation: 130 Ill. 340,23 N.E. 331
• Parties: PEOPLE ex rel. SAYER v. GARNETT et al., Judges Appellate Court.
• Decision Date: 31 October 1889
• Court: Supreme Court of Illinois

130 Ill. 340

23 N.E. 331

PEOPLE ex rel. SAYER

v.GARNETT et al., Judges Appellate Court.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Original petition for mandamus.

Moses & Newman, for relators.

MAGRUDER, J.

This is a petition filed in this court at the June term, 1889, in the name of the people, on the relation of George J. Sayer, for a peremptory writ of mandamus to be directed to the judges of the appellate court of the first district, commanding them to vacate an order entered by them dismissing an appeal taken from the circuit court of Cook county to said appellate court, for want of jurisdiction, and also commanding them ‘to cause said appeal to be reinstated upon the records of said court, and to proceed in the premises as by law and by the usages of said court is required.’ On January 19, 1889, one Siegmund Oppenhiemer and others filed a bill in the circuit court of Cook county against the said Sayer, and obtained an order for an injunction against him, restraining him from engaging in a certain business therein mentioned. He appeared in the suit, and filed an answer under oath, together with affidavit, and moved to dissolve the injunction. On March 5, 1889, the circuit court entered an order refusing to dissolve the injunction, but modifying it in several particulars. Sayer then made a motion to dissolve the injunction as modified, which motion was overruled. Relator then appealed to the appellate court from the order overruling the motion to dissolve the injunction as modified. The appeal was taken under an act of the legislature approved June 14, 1887, entitled ‘An act to provide for appeals from interlocutory orders granting injunctions or appointing receivers.’ Rev. St. Ill. (Ed. 1889,) c. 69, § 24. The appellate court dismissed the appeal, stating, in their order of dismissal, that they did so ‘for the reason that so much of the statute under which said appeal was granted as allows appeals from orders refusing to dissolve injunctions is void.’

A mandamus will not be issued by a superior to an inferior court for the purpose of controlling the latter in the exercise of its judicial judgment or discretion. Where one of the appellate courts of this state dismisses an appeal to it from a circuit court for want of jurisdiction, it thereby judicially determines a question incident to the proceedings and properly arising therein. In passing upon the question it acts in a judicial capacity, and therefore mandamus will not lie to compel the reinstating of the appeal. In Ex parte Railway Co., 103 U. S. 794, a circuit court of the United States had dismissed a suit and dissolved an attachment on the ground that it had no jurisdiction to issue the attachment, and the supreme court of the United States refused to issue a mandamus to compel the circuit court to set aside its order, saying: ‘It is an attempt to use the writ of mandamus as a writ of error to bring here for review the judgment of the circuit court upon a plea to the jurisdiction filed in the suit.’ In Ex parte Railroad Co., 108 U. S. 566, 2 Sup. Ct. Rep. 876, the federal circuit court had sustained a motion to vacate a writ of replevin because the court had no jurisdiction, and had dismissed the action. The federal supreme court refused to issue a mandamus to compel the circuit court to take jurisdiction of the replevin suit, and said: ‘In Ex parte Railway Co., 103 U. S. 796, it was expressly decided that a writ of mandamuscould not be used to bring up for review a judgment of the circuit court on a plea to the jurisdiction.’ In People v. Judges, 20 Wend. 658, the court refused to issue a mandamus to compel the judges of the court of common pleas to vacate an order quashing an appeal to them from a justice of the peace for want of jurisdiction, and it was there said: ‘The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought before it for adjudication, and the question is whether we can, by mandamus, require that court to undo what it has done, on the ground that the decision was erroneous. * * * The writ of mandamus cannot be awarded for the correction of judicial errors. This court, in the exercise of its...