Ry. Passenger & Freight Conductors' Mut. Aid & Ben. Ass'n v. Leonard

• Decision Date: 03 April 1897
• Citation: 166 Ill. 154,46 N.E. 756
• Court: Illinois Supreme Court
• Parties: RAILWAY PASSENGER & FREIGHT CONDUCTORS' MUT. AID & BEN. ASS'N v. LEONARD.

166 Ill. 154

46 N.E. 756

RAILWAY PASSENGER & FREIGHT CONDUCTORS' MUT. AID & BEN. ASS'N

v.LEONARD.

Supreme Court of Illinois.

April 3, 1897.

Appeal from appellate court, First District.

Suit by Anna Leonard against the Railway Passenger & Freight Conductors' Mutual Aid & Benefit Association. From a judgment of the appellate court (62 Ill. App. 477) affirming a decree for complainant, defendant appeals. Reversed.Peck, Miller & Starr, for appellant.

Willits, Case & Odell, for appellee.

CARTER, J.

Anna Leonard, the appellee, filed her bill in equity in the superior court of Cook county to compel the appellant to levy an assessment upon its members for the purpose of paying, and to pay, to her, the sum of $2,500, on account of the death, while a member of the association, of Walter T. Leonard, her husband. The cause was heard, and a decree rendered as prayed, and that appellant should pay interest on the amount at the rate of 5 per cent. per annum from October 8, 1893, the date of the demand and refusal to pay or to levy the assessment. Appellant took the cause on appeal to the appellate court, where, on motion of appellee, the certificate of evidence was stricken from the record, and the decree affirmed. Upon further consideration, on a rehearing of the cause, we are of the opinion that in striking the certificate of evidence from the record the appellate court was in error. It appears that the final decree was rendered by the trial court at its February term, 1895, and that it was provided that a certificate of evidence might be filed in 20 days. Subsequent orders were entered extending this time, and on April 18, 1895, at the April term of said court, the last order was made, extending the time for filing such certificate of evidence five days from said date. The certificate, the original of which was incorporated in the transcript of the record by the clerk, shows that it was presented to the chancellor who tried the cause, and signed by him on April 23d, which was within the time limited by the last order. The record further shows that the certificate was filed with the clerk of the trial court on April 24th, which was one of the days of said April term. It appears by affidavit filed in the appellate court in opposition to the motion to strike out the certificate that counsel for appellee was present when the certificate was presented to the trial judge on April 23d, and objected to its being signed because the last order of extensionof the time, made on April 18th, was obtained without notice, but said that the matter contained in the certificate was satisfactory; that after it was signed counsel for complainant took it for examination, and did not return it to appellant's counsel until the morning of the 24th, when appellant filed it with the clerk. Independently, however, of this affidavit, it appears from the record, as made in the trial court, that the certificate was presented to and signed by the chancellor who tried the cause within the time fixed by the order of that court, and the only two questions which would seem important to consider in this connection are: First, did the court have the power to enter the order made April 18th, extending the time five days? and, second, did the failure of appellant to file the certificate with the clerk within the time fixed by this order rener it inoperative as a part of the record of the cause?

It is undoubtedly true, as contended by appellee, that a certificate of evidence, when duly signed and filed, is a part of the decree (Bennett v. Bradford, 132 Ill. 269, 24 N. E. 630), and that a motion for leave to file a certificate of evidence is a motion for leave to amend the decree. Id. And the contention is that the court has no power to amend the decree at a subsequent term, and without notice to the opposite party, and that the order of April 18th, extending the time to file the certificate five days, having been entered without notice, and at a term subsequent to the term at which the final decree was entered, was without effect, and that, therefore, the certificate, not having been presented to or signed by the judge, or filed, within the time previously limited, did not become a part of the record, and was properly stricken out by the appellate court. In this contention, counsel overlooked the fact that this order of extension was entered in term time by the court, when the court had full jurisdiction of the matter pending,-that is, the matter of amending the decree by the signing and filing of a certificate of the evidence heard, which matter had been continued from term to term,-and had jurisdiction also of the parties to the cause. Whether we consider or not the reasonable grounds for not giving notice to the complainant set forth in the affidavit before mentioned, it was clearly within the power and discretion of the court, within the time limited, and at its April term, to enter the order complained of, even without notice. Without reviewing the authorities on this question, reference may be had to the following: Brownfield v. Brownfield, 58 Ill. 152;Goodrich v. Cook, 81 Ill. 41;Hake v. Strubel, 121 Ill. 321, 12 N. E. 676;Hawes v. People, 129 Ill. 123, 21 N. E. 777;Village of Marseilles v. Howland, 136 Ill. 81, 26 N. E. 495;Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230;Insurance Co. v. Shattuck, 159 Ill. 610, 43 N. E. 389;Underwood v. Hossack, 40 Ill. 98. This case was pending at the April term for the purpose of signing and filing a certificate of evidence.

The cases cited, and others, and the rules which may be deduced from them dispose, also, we think, of the second question raised; that is, that the certificate did not become a part of the record, because, even if presented and signed in time, it was not filed within the time fixed by the order. The time fixed was a day of the April term of court, and the court did not lose jurisdiction of the matter until the end of that term. The court had the power at any time during the term to make a further extension of time, or to order that the certificate be filed nunc pro tunc. And, while no such order was made, the certificate was filed during the term, while the court retained jurisdiction of the matter, and its...