West Chicago St. R. Co. v. Morrison, Adams & Allen Co.

• Decision Date: 20 January 1896
• Citation: 160 Ill. 288,43 N.E. 393
• Court: Illinois Supreme Court
• Parties: WEST CHICAGO ST. R. CO. et al. v. MORRISON, ADAMS & ALLEN CO.

160 Ill. 288

43 N.E. 393

WEST CHICAGO ST. R. CO. et al.

v.MORRISON, ADAMS & ALLEN CO.¹

Supreme Court of Illinois.

Jan. 20, 1896.

Error to circuit court, Cook county; R. W. Clifford, Judge.

Action by the Morrison, Adams & Allen Company against the West Chicago Street-Railroad Company and others. From a judgment for plaintiff, defendants bring error. Affirmed.

Edmund Furthmann, for plaintiffs in error.

Charles Shackleford, for defendant in error.

BAKER, J.

A motion is made by defendant in error to strike from the record the bill of exceptions taken by the plaintiffs in error. The record shows, in regard thereto, the following state of facts: On February 15, 1894, it being one of the days of the January term, 1894, of the circuit court of Cook county, the final judgment herein was rendered, and an order entered of record fixing 20 days thereafter as the limit of time within which the plaintiffs in error might file their appeal bond and bill of exceptions. The February term, 1894, of said court, began on Monday, February 19, 1894. The 20 days allowed for bond and bill of exceptions expired on March 6, 1894, one of the days of said February term, and on that day, and within the time limited, as appears from the record, the time to file the bond and bill of exceptions was extended 10 days. The record states: ‘And afterwards, to wit, on the 6th day of March, A. D. 1894, the following proceedings were had and entered of record in said court, to wit: Morrison, Adams & Allen Company v. Charles T. Yerkes, West Chicago Street Ry. Co. et al. 86,412. On motion of defendants' attorney, it is ordered that the time to file the bond and bill of exceptions herein be and it is hereby extended ten days from this date.’ On the 10th day of March, 1894, it being one of the days of said February term, defendant in error filed in said court its motion to set aside and hold for naught the said order of March 6th. This latter motion was heard by the court on March 15, 1894, that also being one of the days of said February term, and the court overruled the motion to set aside said order of March 6th, and marked the bill of exceptions that day presented in open court as ‘presented March 15, 1894,’ and afterwards, on April 2, 1894, signed and sealed the same as of March 15, 1894, and ordered the same to be filed as of said latter date.

It is a settled rule of law that a record imports absolute verity and cannot be impeached by parol testimony. Hansen v. Schlesinger, 125 Ill. 230, 17 N. E. 718;Weigley v. Matson, 125 Ill. 64, 16 N. E. 881;Railway Co. v. Peterson, 115 Ill. 597, 6 N. E. 412; Roche v. Beldam, 119 Ill. 320, 10 N. E. 191;Lawver v. Langhans, 85 Ill. 138;Herrington v. McCollum, 73 Ill. 476;Blackburn v. Bell, 91 Ill. 434;Garfield v. Douglass, 22 Ill. 100;Zimmerman v. Zimmerman, 15 Ill. 84;Swartz v. Barnes, 11 Ill. 89; Rust v. Frothingham, Breese, 331. When the record is once made up, it is conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and all questions relating to the time when it was in fact made, or in regard to the authority on which it was made, or in respect to the truthfulness of its recitals, must be settled by reference to the record alone. Herrington v. McCollum, supra. But, if an order is improperly entered, or does not state the facts as they actually occurred, application may be made to the court in which the record is, to correct its record. Roche v. Beldam, supra; Herrington v. McCollum, supra. If we assume that the motion filed on March 10th and submitted to the circuit court on March 15th, that the order entered of record on March 6th, ‘be set aside and held for naught,’ is to be regarded as, in substance, a motion for the amendment of the record, and that the action of the circuit court in overruling said motion is properly before us for review by the assignments of cross error on the supplemental record, yet we are unable to say that there was error in the action of the court in the premises. It is true that the affidavit of a deputy clerk of the circuit court states that the branch of the circuit court over which Judge Clifford presides was only in session from 9 o'clock a. m. until 1 o'clock p. m. of said 6th day of March, and then adjourned until 9 o'clock of the following day, and that, after such adjournment was entered, Judge Hanecy, ‘who was then engaged in holding the criminal court of Cook county, directed affiant, on motion of the defendants, to enter an order in the cause extending the time to file bond and bill of exceptions ten days.’ But the principle involved in what was said by this court in Hansen v. Schlesinger, supra, is equally applicable here. It was there said (page 236, 125 Ill., and page 718, 17 N. E.): ‘It is plain, therefore, there was no error in the court in refusing to amend its record. Indeed, it does not appear there was anything to amend by. It seems idle to present affidavits of the clerk of the court to advise the judge presiding at the same term whether he had directed a judgment to be entered while the court was in session for business, or at an hour when he was not transacting the business of the court. The theory of the law is that, at the same term, all proceedings rest in the breast of the judge of the court, and he can amend his record according to the facts within his own knowledge.’ Here, Judge Clifford not only presided at the trial and at the time of the rendition of the judgment and the entry of the original order granting time for filing bond and bill of exceptions, but he also presided in the same branch of the circuit court at the February term thereof, and on March 6th, the day the extension order was made and entered of record, and on March 15th, the day the motion to set aside or annul said extension order was submitted for decision and denied; and both of said days were days of the February, 1894, term of the court. Courts have jurisdiction over their judgments and orders of a pending term, and may amend or set them aside for cause; and, in doing so, the judge of the court may act upon his own personal knowledge of what he had or had not done. When the court denied the motion to set aside the order of March 6th, it must be presumed that the authority by virtue of which that order had been made and spread of record was within the knowledge and consciousness of the presiding judge. The bill of exceptions taken by plaintiffs in error having been submitted to the court within the extended time allowed for filing it, it will not be stricken from the record simply because it was, after the expiration of that time, signed and sealed as of the date of its presentation, and ordered to be filed nunc pro tunc as of that date. Ferris v. Bank, 158 Ill. 237, 41 N. E. 1118. Our conclusion upon these assigned on the supplemental record cannot prevail, and that the motion to strike from the record the bill of exceptions taken by plaintiffs in error must be overruled.

The record brought before us by the writ of error is that of an action of trespass quare clausum fregit, prosecuted in the circuit court of Cook county by the Morrison, Adams & Allen Company, a corporation, against the West Chicago Street-Railroad Company, the West Chicago Street-Railroad Tunnel Company, and Charles T. Yerkes. On February 14, 1890, the Morrison, Adams & Allen Company, then known as the Morrison, Hanna & Allen Company, was occupying, and engaged in business in, a room 40 feet front by 128 feet deep, the same being the north half of the first floor of the building known as Nos. 202 to 212 South Clinton street, in the city of Chicago. It was engaged in the manufacture of putty, paints, and painter's supplies, and was doing a profitable and prosperous business. It had traveling salesmen in Illinois, indiana, Ohio, Michigan, Iowa, Minnesota, and other Western states, and in 1888 its business amounted to about $130,000, and in 1889 to about $150,000. It had in use four putty mills, one lead mill, two mixing tanks, one steam tank, four iron mills, two canning machines, and numerous other machines, and it got the power necessary for the operation of its machinery by means of a system of steam pipes which supplied with power the numerous tenants of that and the adjoining building. It had on hand, at the time of the alleged trespass, merchandise worth about $20,000. On Saturday night, February 14, 1890, the officers of the manufacturing company closed up the factory for the week, and went to their respective homes. At an early hour on Sunday morning, February 15, 1890, a large force of men,-some of the witnesses say as many as 50 or 60,-divided into three squads, and each squad under the command of a separate officer, and the whole force under the command of one Artingstall, who was chief engineer of the West Chicago Street-Railroad Tunnel Company, marched to the building. The men had pickaxes, crowbars, sledge hammers, axes, shovels, and other similar tools, and led on by Artingstall, who says that he ‘headed the column of the attacking party,’ effected an entrance into the building through the basement, over the objections of two employés found on the premises. The men then went to work with the implements they had, and tore off the roof of the building, broke out the windows, broke down partitions, broke the water pipes and steam pipes, cut the belting, broke the shafting, broke the connections leading to a tank on the top floor of the building, which contained about 2,000 gallons of water, which was thereby discharged upon the premises, flooded the building with water, and filled it with steam, and greatly injured and damaged the machinery, merchandise, and property of defendant in error. The avowed object and intention of the raiders were to dismantle the building so that it could not be used, and so that business could not be carried on there the next day, to make it untenantable, and then tear it down and destroy it, in order to start...