People ex rel. Waite v. Bristow, No. 28606.

CourtSupreme Court of Illinois
Writing for the CourtSMITH
Citation62 N.E.2d 545,391 Ill. 101
PartiesPEOPLE ex rel. WAITE v. BRISTOW et al.
Docket NumberNo. 28606.
Decision Date20 September 1945

391 Ill. 101
62 N.E.2d 545

PEOPLE ex rel. WAITE
v.
BRISTOW et al.

No. 28606.

Supreme Court of Illinois.

May 23, 1945.
Rehearing Denied Sept. 20, 1945.


Original proceeding by the People, on the relation of Walter W. Waite, against George W. Bristow and others for a writ of mandamus commanding the respondents, as Judges of the Appellate Court for the Fourth District, to expunge from the records of that court an order entered on October 25, 1944, in the case of Bradford Supply Company, Inc., Appellant, v. R. G. Williams (Walter W. Waite, Appellee).

Writ awarded.

GUNN and STONE, JJ., dissenting.

[62 N.E.2d 547]

Joe Crain, of Mound City, and Asa J. Wilbourn, of Cairo, for petitioner.

Henry I. Green and Oris Barth, both of Urbana, and Wham & Wham, of Centralia (F. M. Nash, of Bradford, Pa., of counsel), for respondents.


SMITH, Justice.

On motion, we granted petitioner leave to file an original petition for a writ of mandamus. The respondents are the judges of the Appellate Court for the Fourth District. The prayer of the petition is that the writ of mandamus issue commanding the respondents to expunge from the records of that court an order entered on October 25, 1944, in the case of Bradford Supply Co. Inc., Appellant, v. R. G. Williams (Walter W. Waite, Appellee).

Respondents filed their joint answer to the petition, to which the petitioner filed a demurrer. The issues were ordered closed and the cause was taken on the issues of law raised by the demurrer to the answer. The demurrer admits the facts well pleaded in the answer. If does not, of course, admit argumentative statements or conclusions.

From the facts alleged in the answer, it appears that on October 27, 1943, there was pending in the circuit court of Pulaski county a certain suit entitled as above stated. The suit was brought to foreclose a materialman's lien on certain oil-well equipment, furnished by Bradford Supply Co., Inc., to R. G. Williams. Walter W. Waite was named a defendant in said suit. He appeared and filed an answer. He also filed a counterclaim at law seeking the recovery of damages from Bradford Supply Co., Inc. By agreement of the parties, the court ordered the cause of action at law on the counterclaim tried separately from the other issues in the case. It was tried before a jury. On October 28, 1943, the jury returned a verdict in favor of the counterclaimant. On November 9, 1943, the court heard and denied alternative motions for a new trial and for judgment notwithstanding the verdict. The court rendered judgment on the verdict on the counterclaim, in favor of the counterclaimant and against Bradford Supply Co., Inc. These orders were all properly entered in the judge's minutes.

Notice of appeal was filed by Bradford Supply Co., Inc., and the appeal was timely perfected to the Appellate Court for the Fourth District. A supersedeas bond was filed in accordance with the order of the circuit court fixing the amount of such bond. A transcript of the record was filed in the Appellate Court on January 26, 1944. The cause was regularly placed on the docket of that court.

On February 4, 1944, Bradford Supply Co., Inc., the appellant in said cause, filed its motion to dismiss the appeal, without prejudice. This motion was as follows:

‘Now comes the appellant, Bradford Supply Company, Inc., a corporation, by M. E. Cox and W. A. McCarty, its attorneys, ans shows unto this Court that the transcript of the record heretofore filed herein, as prepared and certified by the Clerk of the Circuit Court of Pulaski County, Illinois, does not show any judgment, order or decree of record in the Clerk's office of records of said Court of Pulaski County; and said appeal has been prematurely brought and should be dismissed by this Court without prejudice,’ etc.

Shortly after said motion was filed, the appellee in said cause also filed a motion to dismiss the appeal. On February 23, 1944, the court entered the following order:

‘And now on this day come again the said parties, and the Court having carefully examined Appellant's Motion to Dismiss Appeal Without Prejudice and Appellee's Motion to Dismiss Appeal, filed herein,

[62 N.E.2d 548]

and being now fully advised in the premises, It Is Hereby Ordered that the Motion to Dismiss Appeal Without Prejudice be and the same is hereby Allowed and leave given Appellant to Withdraw Record.’

Thereafter, on May 22, 1944, the term of the Appellate Court at which the above order was entered was finally adjourned. On October 10, 1944, Bradford Supply Co., Inc., filed in said Appellate Court a motion in which it asked:

‘(a) That the Court vacate the order entered herein by this Court on February 23, 1944, dismissing without prejudice the appeal herein; and

‘(b) To reinstate said cause on the docket of this Court; and

‘(c) For leave to the plaintiff to withdraw its motion to dismiss said appeal without prejudice; and

‘(d) For a mandate to be issued by this Court, directed to the Clerk of the Circuit Court of Pulaski County, Illinois, commanding him to send up to this Court a completed supplemental transcript of the record in said Circuit Court in said cause, showing the actual date on which any purported judgment, order or decree was actually spread of record; and

‘(e) That this Court fix the time within which to file abstracts, briefs and arguments upon said completed transcript of the record being received by the Clerk of this Court; and

‘(f) For leave to prosecute appeal in said cause to this Court from the purported final decree or judgment entered in said cause as will appear from said completed transcript when filed herein; and

‘(g) For supersedeas.’

A motion was filed by the appellee to strike this motion. The two motions were heard together. They were argued orally and on suggestions of the parties. Thereafter, on October 25, 1944, the following order was entered by the court in said cause:

‘And now on this day come again the said parties, and the Court having carefully examined the Appellant's Motion to Vacate Order, etc., and Appellees' Motion to Strike Motion to Vacate Order, etc., and Appellant's Reply to Suggestions, etc., and after hearing oral argument and being now fully advised in the premises, the following orders were entered as of record:

‘1. The Motion to Strike is denied.

‘2. The Motion to Reinstate Cause and for other relief is allowed in toto.

‘Counsel for Appellant is advised to prepare an Order in harmony with these findings and to submit it to Judge Stone at Springfield, Illinois, which will carry the decision of the court.’

On October 30, 1944, a more formal order signed by Judge Stone was filed in the cause. By this formal order the order of October 25 was somewhat elaborated upon. However, the formal order followed the order of October 25 and, in addition thereto, consisted chiefly of arguments in support of the order entered on October 25. The formal order filed on October 30, after reinstating the cause on the docket, in so far as material, is as follows:

‘1. The order entered in said cause by this court on February 23, 1944, allowing the motion of appellant to dismiss without prejudice the appeal herein because the certified record filed by the Clerk of the Circuit Court of Pulaski County on said appeal did not then show the record of any judgment in favor of the said Walter W. Waite against the said Bradford Supply Company, Inc., and because at that time no such judgment had been spread of record in said Pulaski County Circuit Court, be and the same is hereby vacated.

‘2. The above entitled cause is hereby reinstated on the docket of this court, upon the transcript of record filed herein January 26, 1944, with leave to file supplemental transcript of record from said Circuit Court in said cause.

‘3. Bradford Supply Company, Inc., be and it is hereby granted leave to withdraw its motion filed herein on January 26, 1944, to dismiss said appeal without prejudice, and withdraw the record then on file herein.’

The order then provided that a mandate issue, directed to the clerk of the circuit court, commanding him to send up forthwith a supplemental transcript of the record in said cause, showing all proceedings since January 14, 1944, and other matters. It also granted a supersedeas and suspended all proceedings under said judgment upon the supersedeas bond theretofore filed by Bradford Supply Co., Inc., until the further order of the court. Paragraphs 6 and 7 of the formal order are as follows:

‘6. Bradford Supply Company, Inc., appellant herein, is hereby given and granted leave to prosecute its appeal in said cause

[62 N.E.2d 549]

to this court from the final decree or judgment entered in said cause by the Circuit Court of Pulaski County, Illinois, as the same may appear from said completed transcript of the record in said Circuit Court in said cause, when filed herein.

‘7. It is Further Ordered that upon the filing of said completed supplemental transcript in said cause with the clerk of this court, said Bradford Supply Company, Inc., appellant, shall within twenty (20) days thereafter file herein abstracts of the original and supplemental transcript of record and its briefs in support of its appeal herein; and that within twenty (20) days from the filing of briefs for appellants in said cause, and service made in accordance with the rules of this court of copies of appellant's abstracts and briefs on the attorneys of record for Walter W. Waite, appellee, the said appellee may file herein briefs for appellee, with leave to appellant to file reply brief within the time fixed by the rules of this court.’

It is the order entered by the court on October 25, 1944, vacating the order of dismissal entered on February 23, 1944, and reinstating the cause on the docket of the Appellate Court, and the formal order signed by Judge Stone, filed in said cause on October 30, 1944, which the petitioner seeks to have expunged fom the records of said court.

The parties agree that the sole question...

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45 practice notes
  • People v. Vara, Docket No. 121823
    • United States
    • Supreme Court of Illinois
    • June 1, 2018
    ...it makes its pronouncement. In re Estate of Young , 414 Ill. 525, 533, 112 N.E.2d 113 (1953) (citing People ex rel. Waite v. Bristow , 391 Ill. 101, 62 N.E.2d 545 (1945), and Smyth v. Fargo , 307 Ill. 300, 138 N.E. 610 (1923) ). ¶ 14 In a criminal case, the final judgment is the sentence. P......
  • People v. Rissley, No. 82536.
    • United States
    • Supreme Court of Illinois
    • June 19, 2003
    ...the effect of such dismissal is to leave the parties where they were before the appeal was taken * * *." People ex rel. Waite v. Bristow, 391 Ill. 101, 111, 62 N.E.2d 545 (1945), quoting First National Bank of Kewanee v. Union State Savings Bank & Trust Co., 350 Ill. 21, 22, 182 N.E. 753 Ac......
  • People v. Howard, No. 1-04-2865.
    • United States
    • United States Appellate Court of Illinois
    • February 21, 2006
    ...it, with respect to some error of fact affecting the validity and regularity of the judgment. See People ex rel. Waite v. Bristow, 391 Ill. 101, 116-17, 62 N.E.2d 545, 553 (1945). Naturally, the writ was not without jurisdictional "`The unvarying test of the writ of coram nobis is mistake o......
  • Physicians Ins. Exchange v. Jennings, No. 1-99-3445
    • United States
    • United States Appellate Court of Illinois
    • September 1, 2000
    ...action. Galowich v. Beech Aircraft Corp., 92 Ill.2d 157, 65 Ill.Dec. 405, 441 N.E.2d 318 (1982). In People ex rel. Waite v. Bristow, 391 Ill. 101, 112, 62 N.E.2d 545 (1945), the court "Where an appeal is voluntarily dismissed by the appellant, the effect is to remove the appeal and the caus......
  • Request a trial to view additional results
45 cases
  • People v. Vara, Docket No. 121823
    • United States
    • Supreme Court of Illinois
    • June 1, 2018
    ...it makes its pronouncement. In re Estate of Young , 414 Ill. 525, 533, 112 N.E.2d 113 (1953) (citing People ex rel. Waite v. Bristow , 391 Ill. 101, 62 N.E.2d 545 (1945), and Smyth v. Fargo , 307 Ill. 300, 138 N.E. 610 (1923) ). ¶ 14 In a criminal case, the final judgment is the sentence. P......
  • People v. Rissley, No. 82536.
    • United States
    • Supreme Court of Illinois
    • June 19, 2003
    ...the effect of such dismissal is to leave the parties where they were before the appeal was taken * * *." People ex rel. Waite v. Bristow, 391 Ill. 101, 111, 62 N.E.2d 545 (1945), quoting First National Bank of Kewanee v. Union State Savings Bank & Trust Co., 350 Ill. 21, 22, 182 N.E. 753 Ac......
  • People v. Howard, No. 1-04-2865.
    • United States
    • United States Appellate Court of Illinois
    • February 21, 2006
    ...it, with respect to some error of fact affecting the validity and regularity of the judgment. See People ex rel. Waite v. Bristow, 391 Ill. 101, 116-17, 62 N.E.2d 545, 553 (1945). Naturally, the writ was not without jurisdictional "`The unvarying test of the writ of coram nobis is mistake o......
  • Physicians Ins. Exchange v. Jennings, No. 1-99-3445
    • United States
    • United States Appellate Court of Illinois
    • September 1, 2000
    ...action. Galowich v. Beech Aircraft Corp., 92 Ill.2d 157, 65 Ill.Dec. 405, 441 N.E.2d 318 (1982). In People ex rel. Waite v. Bristow, 391 Ill. 101, 112, 62 N.E.2d 545 (1945), the court "Where an appeal is voluntarily dismissed by the appellant, the effect is to remove the appeal and the caus......
  • Request a trial to view additional results

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