People ex rel. Turivas v. Cook

• Decision Date: 02 April 1924
• Docket Number: No. 15332.,15332.
• Citation: 311 Ill. 429,143 N.E. 57
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. BRIGGS & TURIVAS v. COOK, Judge, et al.

311 Ill. 429

143 N.E. 57

PEOPLE ex rel. BRIGGS & TURIVAS

v.COOK, Judge, et al.

No. 15332.

Supreme Court of Illinois.

Feb. 19, 1924.

Rehearing Denied April 2, 1924.

Petition by the People, on the relation of Briggs & Turivas, a corporation, for a writ of mandamus, to be directed against Wells M. Cook, Judge of the Municipal Court, and others.

Writ denied.

Benjamin B. Morris, of Chicago, for petitioner.

Charles R. Young and Arthur A. Basse, both of Chicago, for respondents.

STONE, J.

On March 1, 1923, the petitioner, by Benjamin B. Morris, its attorney, filed in this court a petition for leave to file its original petition for a writ of mandamus against the respondents, Wells M. Cook, judge of the municipal court, and the Ft. Wayne Rolling Mill Company, a corporation. On leave being granted, Morris, for his client, Briggs & Turivas, a corporation, on April 4, 1923, filed its petition, and therein purported to set up certain proceedings had and taken in connection with a certain lawsuit in the municipal court of Chicago. By this petition it was claimed that the petitioner was entitled to the writ of mandamus to compel the respondent judge to expunge from the records of the municipal court an order entered on February 13, 1923, vacating and setting aside a default and judgment, and quashing the return of summons against the respondent the Ft. Wayne Rolling Mill Company, entered in that court on October 19, 1920.

The petition for mandamus sets out that on the 19th day of October, 1920, the petitioner recovered a judgment by default against the respondent rolling mill company in the sum of $604.32; that on the 10th day of February, 1921, the rolling mill company filed a special appearance, motion, and petition, with affidavits, to set aside the judgment entered against it. On April 11, 1921, petitioner filed its answer to the motion of the rolling mill company. On April 13 the motion was by the court denied. On April 26 the rolling mill company again filed a special appearance and an amended petition and affidavits, with a motion to vacate the order of April 13, and also to quash the service of summons, set aside the judgment, and dismiss the suit. This motion was denied. The next proceeding set out in the petition is to the effect that on January 15 following the respondent Wells M. Cook, as judge of the municipal court, entered an order setting for hearing the matter of vacating the order theretofore entered on April 26, that on that day the petitioner filed an answer objecting to the hearing, and that on February 13 the order herein referred to as complained of was entered and the order of April 13, 1921, was set aside, the return of summons was quashed, and the default and judgment were vacated and set aside.

The respondents, upon filing the petition herein, were ruled to answer, and respondent Cook filed on April 14, 1923, his answer, in which it appears for the first time that the respondent rolling mill company, upon the denial of its motion of April 26 to set aside the order of April 13 and the default and judgment, appealed from the order of the municipal court denying said motion and petition to the Appellate Court for the First District; that on October 10, 1921, the petitioner here, appellee in the Appellate Court, filed a motion to strike certain portions of the bill of exceptionsfiled in that court and to dismiss the appeal. This motion was denied by the Appellate Court. An examination of the briefs filed there shows that the only questions presented on appeal to the Appellate Court were the sufficiency of the service of summons returned in the municipal court in the main case and the error of the municipal court in denying the petition of April 26 without a hearing on the issues of fact set up therein and in refusing to set aside its order of April 13. The Appellate Court reversed the order of the municipal court denying the motion and petition to vacate the judgment against the rolling mill company, holding that under the...