author: Dickey, J.:

text:
    Chicago Life Insurance Company v. The Auditor of Public Accounts.

      At Ottawa, September Term, 1881.

      Appeal—what is a final decree—in a proceeding by the Auditor for the dissolution of am, inswrance company. In a proceeding by the Auditor of Public Accounts, under the act of 1874, for the dissolution of an insurance company, upon the filing of the petition the court below entered an order appointing a receiver of the corporation, and awarding a preliminary injunction to restrain the company from any further prosecution of its business until the further order of the court. Subsequently, upon a hearing of the cause, the court entered a decree making the injunction theretofore granted, perpetual, and ratifying and confirming the previous appointment of the receiver. It was held, that the nature and character of the decree were such that it settled the ultimate rights of the parties, and determined that the corporation was in such condition as to be liable to that proceeding. So the decree was to be regarded as so far final that a writ of error would lie to bring it in review before the Supreme Court.
    Writ of Error to the Circuit Court of Cook county.
    On the 7th day of July, 1877, the Auditor of Public Accounts filed in the circuit court of Cook county a petition for the dissolution of the Chicago Life Insurance Company, under the act of 1874 on that subject. The petition is as follows:
    “Your petitioner, T. B. Needles, Auditor of Public Accounts for ■ the State of Illinois, respectfully represents as such Auditor, and in his official capacity, that he has lately, as Auditor as aforesaid, caused an examination to be made, in pursuance of an act-of the General Assembly of said State, entitled ‘An act in regard to the dissolution of insurance companies,’ approved February 17, 1874, and in force July 1, 1874, of the Chicago Life Insurance Company, of Chicago, a corporation organized and existing under and by virtue of and subject to the laws of said State of Illinois, and having its principal place of business in the city of Chicago; and that the result of the said examination, and the general condition and amount of the assets and liabilities of said company, appear in schedule hereto annexed, and marked ‘Exhibit A,’ and which your petitioner craves may be taken and considered as a part hereof. And your petitioner shows that, from such examination, he is of the opinion that the condition of said company is such as to render its further continuance in business hazardous to the insured therein, t and that your petitioner has so certified to the Attorney General. Therefore your petitioner prays that the said company may be summoned to answer your petitioner respecting the matter herein set forth; and that they may be enjoined and restrained from further proceeding with their said business ; and that a receiver may be appointed to take charge of the real estate and effects of said company, in pursuance of the act aforesaid, and with the powers therein prescribed and usually vested in a receiver. And that in the meantime, and until the cause may be heard, the said company may be temporarily enjoined as above prayed, and that a receiver be named and empowered, and that your petitioner may have such other and further relief as may be meet. And the petitioner prays that the usual writs of summons and injunction may be issued as aforesaid. And your petitioner will ever pray, ” etc.
    On the same day the circuit court entered the following order:
    “And now comes said complainant, by E. B. Sherman, his solicitor, and moves the court to appoint a receiver of said company, pursuant to the statute in such case made and provided, and said defendant, having been duly served with notice, also comes by C. C. Bonney, its solicitor, appearing for the purpose of this motion, and not waiving any of the rights of said defendant, but insisting upon the same; and the court having heard counsel on said motion, it is thereupon ordered that George M. Bogue, of Chicago, in county of Cook, he, and he is hereby, etc., appointed receiver of all and singular the real estate, personalty, choses in action, bonds, bills, notes, securities, evidences of indebtedness, books, records, moneys, checks, drafts, and property and assets of every nature, real and personal, of and belonging to said defendant, or in any manner held in trust for or subject to the control of said defendant, as the same are on this 7th day of July, with power to take possession of the same forthwith, and to institute any and all necessary proceedings or actions to recover the same, either at law or in equity.
    “And it is further ordered, that the president and secretary of said Chicago Life Insurance Company do, on request, without delay, execute and deliver to said receiver all necessary deeds, conveyances and assurances of title proper and requisite to carry out the foregoing order, and to vest in said receiver full title to all and singular the properties, assets and choses in action of said defendant, and that said receiver do have and exercise all and singular the rights and powers conferred upon such receiver by the statutes of this State in that behalf.
    “And it is further ordered, that said receiver give bond in the sum of $200,000, with good and sufficient sureties to be approved by the court, conditioned for the faithful performance of his duties as such receiver, and that on the approval of such bond he be forthwith empowered with all the rights and powers of such receiver as aforesaid, and with the usual powers of a receiver in equity, with liberty to apply to the court from time to time for such further directions and orders as may be necessary to the discharge of his trust.
    “It is further ordered, that said defendant, the Chicago Life Insurance Company, its officers, agents, attorneys and servants, be and they are hereby enjoined and restrained, until the further order of the court, from further proceeding with their said business, and from making any transfer or disposition of their property other than to said receiver as aforesaid, and from receiving or paying out any moneys, and that neither said receiver nor said defendant, its officers, agents, servants or attorneys, shall exact or take from its policyholders any sum or sums of money to accrue from premiums on policies beyond what may be justly due or payable on or as of the 7th day of July, A. D. 1877.”
    Subsequently, on the 2d of July, 1881, the "following decree was entered:
    “And now, on this 2d day of July, 1881, being one of the days of the June term of the said court, this cause came on to be heard upon the motion of the solicitor of said Auditor for a perpetual injunction against the said defendant; and the court, having considered the petition of the said Auditor, and the exhibits therewith filed and made a part thereof, and the answer of the said defendant thereto, all of which were filed on the 7th day of July, 1877, the order entered thereupon restraining the said defendant from the further prosecution of its business until the further order of the court, and appointing George M. Bogue receiver of the said company, which was entered on the said 7th day of July, 1881; and having considered the evidence introduced in behalf of the said complainant, and also on behalf of the said defendant; and having heard argument of counsel for the respective parties, and after a full hearing of the parties interested,— that is to say, the said Auditor, the complainant," and the said Chicago Life Insurance Company, the defendant,—and having considered the motion of the said defendant for a decree in its favor, filed in said cause at the conclusion of the said hearing, wherein the said defendant specified the grounds upon which its said motion was based; and being fully advised in the premises, the court doth overrule and deny the said motion of said defendant for a decree in its favor, and doth find that the only question now before the court upon this hearing is, whether the said defendant shall he perpetually enjoined from the further prosecution of its business. And the court doth further order, adjudge and decree, that the said defendant be and hereby is perpetually enjoined, restrained and prohibited from the further prosecution of its business. And the court doth further order and adjudge, that the costs of this proceeding be paid by the defendant out of any property of the defendant available for that purpose.
    “And now, the said defendant having been perpetually enjoined from the further prosecution of its business, it is, thereupon, on motion of the solicitor of the said Auditor, now made in open court, further ordered, adjudged and decreed, that the order of the court heretofore made in the said cause, appointing the said George M. Bogue receiver of the said defendant, be and the same is hereby ratified and confirmed. ”
    To reverse this decree the defendant company sued out this writ of error. And now the Auditor enters his motion to dismiss the writ of error, upon the ground that the decree sought to be brought in review is not a final decree.
    Mr. B. B. Sherman, for the motion,
    contended that the proceedings thus far were purely interlocutory, and not final, in their character; that there was to be a further hearing upon the pleadings and proofs, and that upon such further hearing the circuit court had an entire discretion, not restricted by what has already been done, to modify its prior decrees, and to enter such orders as the exigencies of the case may require. Counsel contended there had been no final hearing and no final decree.
    Messrs. C. C. & C. L. Bonney, contra:

    The claim that there is a final hearipg yet to take place in this cause upon the pleadings will not bear examination. If the insurance company has not forfeited its franchises and its right to transact the business for which it was incorporated, then the decree in question should be reversed; and if it has incurred such forfeiture, then when the distribution of the corporate assets shall be completed, the dissolution of the body corporate, whether by scire facias at law, or in equity, upon the supposition that the dissolution act authorizes such a course, would be a mere matter of course, to which the corporation could not interpose any valid objection. A perpetual injunction against the transaction of business by a corporation is, for all practical purposes, the putting of the corporation to death. The Chicago Life Insurance Company prosecutes this writ of error as its sole means of averting the impending extinction of its corporate life. The pretence, therefore, that there yet remains any further substantial question. to be tried, in which the corporation would have a vital interest, is without foundation.
   Dickey, J.:

This was a bill filed by the Auditor to wind up a corporation, and to put it in liquidation. A decree was entered in the case, after examining the proofs, on hearing, in substance that the corporation was liable, and had subjected itself to that proceeding under the statute, and a preliminary injunction was declared to be perpetual, the previous appointment of a receiver was affirmed, and then orders were made directing steps to be taken to wind up the corporation, and adjust its affairs. To reverse that decree the insurance company has sued out this writ of error. The motion is now made to dismiss the writ of error, because, as it is said, the decree is not the final decree. The nature and character of the decree, as we conceive and the majority of the court think, settles the ultimate rights of the parties. It determines that the corporation is in such condition as to be liable to that proceeding. The remaining proceedings to be had, if this decree stands, will simply be in enforcement of this decree.

The motion will therefore be overruled.

Motion to dismiss denied.


source: Caselaw Access Project

author: Per Curiam: Per Curiam : Craig, Ch. J.: Craig, Ch. J.:

license: Public Domain

text:
    Eliphalet W. Blatchford et al. v. Henry W. Newberry et al.

      At Springfield, January and June Terms, 1881.

    . 1. Practice in the Supreme Court—setting aside a judgment and ordering a rehearing in vacation—construction of the act of February 18, 1859. The act of 1859, (sec. 15, ch. 37, Rev. Stat. 1874,) providing that “whenever any judgment shall have been rendered in the Supreme Court which, upon further consideration, is found to have been erroneously entered up, the judges thereof are authorized, during vacation, to change the same without ordering a rehearing thereof, by entering a proper judgment in said cause,” does not authorize the Supreme Court, in vacation, to set aside.a judgment previously entered, and to order a rehearing of the cause, where the judgment so entered was in conformity with the judgment which the court had rendered in the cause, and such as the court intended at the time should be entered. The statute applies only to cases where the actual judgment of the court has not been correctly “entered up” by the clerk. In acting under the statute, the inquiry is not whether the judgment as rendered or determined upon by the court was a correct judgmeiit, but whether the judgment as rendered is “found to have been erroneously entered up.”

    2. Same—ordering a rehearing after a term has intervened. A cause on appeal from a decree in chancery was submitted to this court at the January term, 1878, and the opinion of the court, reversing the decree and remanding the cause, was filed on the 24th of June, 1878, and a judgment was entered accordingly. On petition of the appellees, presented at the January term, 1879, (the first term of the court after the entry of the judgment,) a rehearing was granted at the January term, 1880, and on the 2d of February, 1880, the original opinion, directing a reversal of the decree, was again approved and filed, and the same judgment was again entered in the cause. At the January term, 1881, (the June term, 1880, having intervened,) the appellees asked the court, of its own motion, to set aside the judgment entered on the 2d day of February, 1880, and to grant another hearing of the cause. The application was denied.
    3. The court does not undertake to say that in no case will it, of its own motion, set aside a judgment at the second term after the same has been rendered, or grant a rehearing, but it is held, that when a cause has been twice deliberately heard and considered, and the same result reached at both hearings, and a judgment has been rendered and entered of record in accord with the then judgment of a majority of the court, public policy and the stability of legal proceedings demand that .such judgment should not, after one entire term has intervened, be disturbed for no other cause than that some of the judges who concurred in rendering the judgment may have changed their views of the law.
    4. Same—of the intervening of new parties. In a cause brought to this court by appeal, none save such as are parties to the record in this court have a right to be heard. If there are interests such as would make it proper for other parties to intervene in the cause, such intervention must begin in the court of original jurisdiction, and can not be allowed in this court.
    5. Same—mandamus—of the character of motion to he made on application for leave to file petition. Upon asking leave to file a petition for a writ of mandamus in this court, it is not necessary to couple with such application a motion that a summons or an alternative writ be awarded. Upon granting leave to file the petition, if, upon examination, it is found that sufficient cause is shown, the summons will be awarded without any special motion for that purpose.
    6. Same—compelling cowrt helow to enter specific judgment after a general order of remandment. On the reversal by this court of a decree of the trial court, in a suit in chancery, it was ordered: “The decree must be reversed, and the cause remanded for further proceedings in conformity with this opinion, ”—the opinion of this court as pronounced upon the reversal. On application for a writ of mandamus to compel the trial court to dismiss the bill, on the assumption that there was nothing else for that court to do after placing the cause again upon its docket under the remandment, it was held, that this court had not given any specific directions as to the course the case should take, and under a remanding order of this character the court below would not be compelled to enter any particular order in the case.
    Appeal from the Circuit Court of Cook county.
    In vacation after the January term, 1878,—on the 24th of June, 1878,—an opinion was filed in this cause, reversing the decree of the court below, and remanding the cause for farther proceedings in conformity with that opinion,—and judgment wTas entered accordingly. Subsequently a rehearing of the cause was granted, under the rules of this court, and a re-argument was heard at the January term, 1880. Upon further consideration the opinion reversing the decree of the circuit court was re-filed on the 2d of February, 1880, and judgment was again entered in conformity to that decision. (99 Ill. 11.)
    In vacation after the June term, 1880,—on the 14th day of July, 1860,—four of the judges of this court signed an order setting aside the judgment entered upon the re-filing of the opinion on the 2d of February, 1880, and ordering another rehearing of the cause.
    At the January term, 1881, counsel for the appellants moved the court to rescind the order made in vacation, on the 17th of July, 1880, setting aside the final judgment of this court entered on the 2d day of February, 1880.
    Messrs. Isham & Lincoln, for the appellants, in support of the motion :
    The court had no power to make the order which was made, independent of the statute of February 18, 1859. Coke’s Lit. 260 a; Arthur Blackamore’s Case, 8 Coke’s Rep. 157 a; Tommey v. White, 3 H. L. Cases, *69; Wilson v. Wilson, 5 id. *63; Hudson v. Guestier, 7 Cr. 1; The Avery and Cargo, 2 Gall. 389; Jackson v. Ashton, 10 P. 480; Ex parte Sibbald v. United States, 12 id. 488; Washington Bridge Co. v. Stewart, 3 H. 425; Bank of the United States v. Moss, 6 id. 38; Brown v. Apsden, 14 id. 25; Morgan v. Hays, Breese, 127; Lampsett v. Whitney, 3 Scam. 170; Hollowbush v. McConnel, 12 id. 204; Cook v. Wood, 24 id. 295; Smith v. Wilson, 26 id. 189; Becker v. Sauter, 89 id. 597; State’s Savings, etc. v. Nelson, 49 id. 171; Dunham v. South Park Comrs. 87 id. 188; Lill v. Stookey, 72 id. 497; Albers v. Whitney, 1 Story, 312, Emerson et al. v. Tomlinson, 4 Greene, (Iowa,) 395; Hungerford v. Cushing, 8 Wis. *324; The Inhabitants of Limerick, 18 Me. 186; Snodgrass v. Adams, 7 J. J. Marshall, 165; Bobb v. Bobb, 2 A. K. Marshall, 646; Conn v. Doyle, 2 Bibb, 248; Boyd v. Blaisdell, 15 Ind. 74; Makepeace v. Lukens, 27 id. 437; State of Wisconsin v. Bank, 20 Wis. 643; Ætna Life Ins. Co. v. McCormick, id. 268; Scheer v. Keown, 34 id. 352; Exrs. of Horn v. Gartman, 1 Fla. 197; Hill v. City of St. Louis, 20 Mo. 586; Blackstone’s Com. 3, *406; Sagory v. Bayless, 13 S. & M. 153; Catlin v. Robinson, 2 Watts, 373; Stephens v. Cowan, 6 id. 513; 3 Salk. 29; Trustees Imp. Fund v. Bailey,
      10 Fla. 257; Forquer v. Forquer, 19 Ill. 68; The People v. Quick, 92 id. 580; Real Estate Bank v. Rawdon, 5 Ark. 576; Rawdon v. Rapley, 14 id. 205; Askley v. Hyde, 6 id. 100; Rex v. Carlile, 2 B. & A. 971.
    The statute of February 18, 1859, (sec. 15, ch. 37, Rev. Stat. 1874,) makes no pretence to confer upon the court power to change any judicial action; The court had already power, as a court and when in session, to make any proper order or amendment in support of its judgment rendered, and “so that such judgment should not be reversed or annulled;” and if the judgment rendered by the court ‘had been erroneously entered up by the clerk, it had power when in session to amend the record so as to make it express truthfully the judgment which the court actually intended to render; and all which this statute purports to do is to give power to the court to do in vacation what it already had power by other statutes, and even by the common law of this State, to do in term time and when in session.
    This is the scope of the statute. It is of the same character as all other existing statutes of amendment from 14 Edward III, to the present time. Like them, its powers are bounded by two historical limitations, viz: they can be exercised only in support and affirmance of the actual judgment' rendered by the court, and they do not extend to any judicial error.
    Even if, under the statute, there was power to reverse or annul a judgment after the term, there was still no power to make the order which has been made in this cause. The provision of the statute is to correct the erroneous entry of the judgment by entering a proper judgment in said cause. The end of litigation is a fundamental care of the law, especially in appellate courts. There is no color of authority in this act to simply annul a final judgment, and re-open a cause for further litigation.
    In the only instances in which such an order has been made by any court, it has been promptly rescinded as being improvidently made. Emerson v. Tomlinson, 4 Greene, (Ia.) 398; Real Estate Bank v. Rawdon, 5 Ark. 576; Rawdon v. Rapley, 14 id. 205; Ashley v. Hyde, 6 id. 99.
    Messrs. Lawrence, Campbell &; Lawrence, Mr. Wirt Dexter, and Mr. B. B. McCagg, for the appellees,

      contra, contended that the act of February 18, 1859, was intended to confer, and did confer, upon this court the power to enter in vacation the order of July 14, 1880. Counsel argued at length that the statute was passed in view of the well known practice in this court at the time, so as to enable the court to change its judgment,—not the mere entry of it, if such entry were different from what the court had actually decided, —but to change the result of the consideration of the case, so that a different judgment should be entered from that which had originally been intended to be entered.
    Counsel insisted further, that the order of this court, made on the 2d of February, 1880, was not a final judgment, in any such sense as would prevent the court from modifying or changing it as it might choose;—that the court below was not commanded to enter any specific decree, but simply to proceed with the case, citing Empire Fire Ins. Co. v. Real Estate Trust Co. 1 Bradw. 391; Thompson v. Sornberger, 78 Ill. 353; C. M. Co. v. Dorwin, 25 id. 169; Chickering v. Failes, 29 id. 294; Elston v. Kennicott, 52 id. 272; Shaw v. Dennis, 5 Gilm. 421; Grant v. Bennett, 96 Ill. 523.
   Per Curiam:

A judgment was rendered in the present cause, reversing the judgment below, in vacation after the January term, 1878. Petition for rehearing was subsequently filed, and a rehearing was ordered; and the cause was thereupon re-argued at the January term, 1880.. Upon full consideration, it was then again adjudged that the judgment below be reversed, and the judgment of the court was so entered of record on the 2d day of February, 1880. Subsequently, and after the expiration of the June term, 1880, in the same Grand Division, four judges of this court signed an order, in vacation, setting aside the judgment rendered at the January term, 1880, and ordering a rehearing of the cause. The present motion is to vacate that order and strike the cause from the docket. There is no pretence that the judgment of the 2d day-of February, 1880, was not entered of record as it was rendered, but the order was based entirely upon the fact that, upon subsequent reflection, certain members of the court who had consented to the judgment of the 2d day of February, 1880, had become dissatisfied with that judgment, and desired to hear further argument.

There is no authority for making the order so made, aside from the statute, and sec. 15 of chap. 37, Revised Statutes of 1874, contains all the statutory authority conferred upon judges of this court to make orders in vacation.

That section is as follows: “Whenever any judgment shall have been rendered in the Supreme Court which, upon further consideration, is found to have been erroneously entered up, the judges thereof are authorized, during vacation, to change the same without ordering a rehearing thereof, by entering a proper judgment in said cause; and in case a procedendo shall have been issued in such cause, the judges may recall the same, and by order of any of the judges, all proceedings taken by reason of such procedendo shall be vacated and set aside: Provided, that all such judgments shall be corrected within six months from the adjournment of the term at which they may have been rendered. ”

It will be observed that the power here assumed to be conferred upon the judges is not to grant rehearings, but when a judgment is found to have been erroneously entered up, to change the same without ordering a rehearing: The words “ rendered ” and “ entered ” are plainly used antithetically, and each in its distinctive correct legal sense,— “ rendered ” being used to indicate the giving of judgment, and “ entered ” to indicate the act of placing the judgment ren clered on record,—in other words, enrolling or recording it. “Erroneously entering up a judgment” expresses only an error in the clerical act of placing it upon the record, and implies that the judgment enrolled or recorded is not the judgment “rendered” or given.

The words “upon further consideration, ” in this connection, clearly do not mean the act of giving judgment, but simply that upon further thought and reflection it-is discovered that the judgment rendered was erroneously—that is, incorrectly,—entered up. The further consideration is not, as contended by counsel, to be in reference to whether the judgment as rendered was a correct judgment or not, but whether the judgment as rendered is “ found to have been erroneously entered up.”

It is quite true, as the counsel argue, that the words “it is considered, ” are the language of courts in pronouncing judgment, but that is not the language here used. The language here being “upon further consideration, ” which, so far as we have discovered, is never used to express the act of rendering a judgment anew, but is always used to express the act of further thought, reflection and deliberation. The change authorized—that is, “to change the same,’’—unmistakably refers back for its antecedent to the erroneous entry, and authorizes, not the rendering, but the entering of a proper judgment—that is to say, a judgment in conformity with that rendered.

The argument sought to be drawn from the act of 1859 empowering the judges of the Supreme Court, or any four of them, to enter orders and judgments in vacation, etc., we do not regard .as of force in giving construction to this statute. The word “rendered” is not used in that statute at all, and so there is not any foundation for claiming that “ entered ” and “rendered” are ever used by the legislature as synonymous, and least of all where both words occur, as here, in the same sentence, and apparently each accurately in its own distinctive sense. The word “ entered, ” there, doubtless means “ cause to be entered, ” for it would seem quite clear that it intended a record of the judgment, order, etc., should be made, and not merely an announcement thereof, and this, of course, must be the act of the clerk. ° But to cause an entry to be made of a judgment, in vacation, in a ease which at the last term had been taken under advisement, of necessity implies that power shall be possessed to render the judgment or determine what the order shall be, and hence the power here expressly given carries with it the implied power to render the judgment, etc. The language used, therefore, instead of proving that .it means what it does not say, proves only that there is necessarily' implied a power, to express which in terms would have required other and different language.

Messrs. Isham & Lincoln, for the appellants, contra.

We deem it unnecessary to refer to the title of the act, or the previous practice of the court under this statute. The language is too plain to be controlled by such considerations.

We are unanimous in these views. The order must be vacated, and the cause stricken from the docket.

Cause stricken from the docket.

On a subsequent day of the January term, 1881, Mr. James McCabtney, Attorney General, in behalf of the People, in conjunction with counsel for the appellees, presented an application asking this court, of its own motion, to set aside the judgment of this court entered on the 2d day of February, 1880, and to grant another hearing of the cause.

Per Curiam :

This is an application made at this term of the court, by counsel for appellees, asking this court now, of its own motion, to make an order setting aside the judgment of this court entered on the 2d day "of February, 1880, reversing the decree of the circuit court in this cause, and asking this court now to grant another hearing of this cause.

This cause was first submitted for our consideration at the January term, 1878, and the opinion of the court was first filed on the 24th day of June, 1878, and a judgment was at once entered of record in accordance therewith, reversing the decree and remantling the cause. On petition of appellees, presented at the January term, 1879, a rehearing was granted at the January term, 1880, and at that term the cause was very elaborately argued by counsel, and on the 2d day of February, 1880, the original opinion, directing a reversal of the decree, was again approved and filed, and the same judgment was again entered in the cause. No proceedings in court have been had in this suit since that time. The June term of this court has intervened without any action by the parties seeking to disturb this judgment.

We have given this application careful consideration, and we think the same can not properly be allowed.

We do not undertake to say that in no case will this court, of its own motion, set aside a judgment at the second term after the same is rendered, or grant a rehearing; but we think it would be an unwise precedent should we do so merely because the views of some of the members of the court who concurred in rendering such judgment, may have changed in regard to the law affecting the case. When a cause has been twice deliberately heard and considered, and the same result reached at both hearings, and a judgment has been rendered and entered of record in accord with the then judgment of a majority of the court, public policy and the stability of legal proceedings demand that such judgment should not, after one entire term has intervened, be disturbed for no other cause than that some of the judges may have changed their views of the law.

The Attorney General asks -leave to join in this application, and insists that the public have interests involved in this cause, and he urges a rehearing that he may have an opportunity to assert, support and vindicate the same. We are of opinion that in a cause brought here by appeal, none save such as are parties to the record in this court have a right to be heard. If the interests of the public be such that the Attorney General may properly intervene in this litigation, we think such intervention must begin in the court of original jurisdiction, and can not be allowed here.

The application is denied.

Rehearing denied.

Subsequently, at the June term, 1881, counsel for the appellants in this case made application for leave to file in this court a petition for a writ of mandamus.

The original suit, as will be seen by reference to the report of the case in 99 Ill. 11, was in chancery, instituted in the circuit court of Cook county, by Henry W. Newberry and others, claiming to be the ultimate distributees under the will of Walter L. Newberry, deceased, against Eliphalet W. Blatchford and others, the trustees appointed in the will and the widow of the testator. The purpose of the suit was to obtain a decree for the present distribution of the estate, it being alleged that the conditions necessary to such distribution were already existing, within the meaning of the will. The circuit court decreed the relief sought, but on appeal to this court the decree of the circuit court was reversed. The conclusion of the opinion in the case is as follows: “The decree must be reversed, and the cause remanded for further proceedings in conformity with this opinion,” (99 Ill. 64.) It is now sought to compel the circuit court, by mandamus, to dismiss the bill in that suit, the cause being now upon the docket of that court under the remanding order from this court.

Mr. Edward S. Isham, in making the application for leave to file the petition, inquired of the court whether it was the proper practice to couple with the motion for leave to file the petition a motion for an alternative writ, or whether the motion for leave should be an independent motion, and first disposed of.

Craig, Ch. J.:

Under the practice in this court, after leave is given to file the petition, if, upon examination, it shall appear that sufficient cause is shown, we will award the summons without any special motion for that purpose.

On a subsequent day of the term the ruling of the court upon the application for the writ of mandamus was announced, as follows:

Craig, Ch. J.:

A majority of the court have concluded to deny the writ. It is claimed by the relator that under the remandment of the cause to the circuit court for further proceedings in conformity with the opinion of this court, as expressed upon the reversal of the decree, there was nothing for the circuit court to do except to dismiss the bill, and as proceedings are being had in the cause in the circuit court inconsistent with such disposition of the case, this court should, by mandamus, compel the dismissal of the bill.

The judgment pronounced by this court, upon the reversal of the decree, did not give any specific directions in regard to the course the case should take when it was returned to the circuit court,—that court was not directed to dismiss the bill, or to enter any partióular order. The judgment of this court was that the cause be remanded to the circuit court for further proceedings in conformity with the opinion of this court. Of course, if the circuit court should take any steps supposed to be contrary to law, its action can be reviewed upon writ of error or appeal. But under a remanding order of this character we do not think we would be justified in awarding a writ of mandamus to compel the circuit court to enter any particular order in the case.

Mandamus denied.


author:
Mr. Justice Dickey
      Mr. Justice Scott :

text:
    The People ex rel. Andrew Lynch v. The Board of Supervisors of La Salle County.

      Filed at Ottawa September 27, 1881.

    1. Election of county offioebs—at what time—under the amendment of 1880 of sec. 8 of art. 10 of the constitution of 1870—at what time that amendment became.operative. The amendment of section 8 of article 10 of the constitution of 1870, adopted by a vote of the people in November, 1880, prescribing the tenure of certain county offices, and fixing the times of the election therefor, became a potential and operative part of the constitution, at least as soon as the amendment was by the board of canvassers declared adopted, if not as soon as the polls were closed on the day of the voting for its adoption, and thereby at once accomplished a change in substmce in the condition of the law in relation to general elections for the class of county offices provided for, which change was immediate.
    2. In considering particularly as to the time for holding the election for county judges, county clerks and county treasurers, it was held, that when it was declared in the amendment that these officers should be elected at a general election to be held in November, 1882, it was intended to substitute this declaration for all law then in force, whether- constitutional or statutory, regulating the times for the general election as applicable to them. The effect of the adoption of the amendment was to supersede the previous provisions for a general election for these officers in November, 1881, and thereby to extend the time wherein the then incumbents should have the right to hold then’ offices until the first Monday of December, 1882.
    3. Same—legislative construction of the constitution upon political questions—how far obligatory upon the courts. In considering the construction to be given to a clause of the constitution, it is a rule of law that where the questions involved are purely political in their character, and depend upon the construction to be given to provisions of doubtful interpretation, the court will not only give great consideration to a construction given by the political departments of the State, but will generally follow such construction implicitly.
    4. So the legislation of 1881, enacted by the General Assembly and approved by the' Governor, repealing the statutes providing for a general election of county officers in November, 1881, and in lieu thereof providing for the election of such officers in November, 1882, may be regarded as a construction of this amendment of the constitution as intended to supersede and dispense with such an election in 1881. It is considered that such a construction in such a case ought not to be disregarded, as affording an additional reason in support of the construction given by the court.

      5. Same—constitutionality of the act of 1881. This legislation of 1881, while it operates practically to extend the terms of office of the present incumbents of these county offices for one year, is not obnoxious to the objection that it is in violation of that provision of the constitution which forbids the abridgment or extension of those terms of office by statute,—for, the constitutional amendment of 1880, in requiring an election in 1882, permits but one of two plans to be adopted by means of which effect can be given to it— either to hold an election in November, 1881, as heretofore, and limit the terms of the officers then elected to one year, or to omit the election in 1881, and extend the terms of the present incumbents for one year; and the amendment being silent on this particular subject, it may well be implied that a discretion was given the General Assembly to select between the two plans, either of which would result in legislation inhibited by the letter of the constitution, but without the adoption of one of which the end sought by the amendment could not be attained.
    There was a joint resolution passed by the Senate and House of Representatives of the Thirty-first General Assembly, which convened on the 8th day of January, 1879, as follows:

      “Resolved, by the Senate of the State of Illinois, the House of Representatives concurring herein, That there shall be submitted to the voters of this State, at the next election for members of the General Assembly, a proposition to so amend the eighth (8) section of the tenth (10) article of the constitution of this State, so that the same may read as follows: ‘In each county there shall be elected the following county officers, at the general election to be held on the Tuesday after the first Monday in November, A. D. 1882: a county judge, county clerk, sheriff and treasurer; and at the election to be held on the Tuesday after the first Monday in November, A. D. 1884, a coroner, and clerk of the circuit court, (who may be ex officio recorder of deeds, except in counties having 60,000 or more inhabitants, in which counties a recorder of deeds shall be elected at the general election in 1884). Each of said officers shall enter upon the duties of his office, respectively, on the first Monday of December after his election, and -they shall hold their respective offices for the term of four years, and until their successors are elected and qualified: Provided, that no person having once been elected to the office of sheriff, or treasurer, shall be. eligible to reelection to said office for four years after the expiration of the term for which he shall have been elected.’ ”
    At the election for members of the General Assembly next succeeding the date of the passage of that resolution, a majority of the votes cast upon the question of the proposed amendment were in favor of its adoption, and it was, accordingly, by the board of canvassers declared adopted.
    Section 8 of article 10 of the constitution of 1870, of which the foregoing is an amendment, provided that county treasurers, and sheriffs and coroners, should hold their offices for two years, and until their successors should be elected and qualified.
    The Thirty-second General Assembly passed “An act to amend sections sixteen, seventeen, nineteen, twenty-one, twenty-two, twenty-three and twenty-four of an act entitled ‘an act in regard to elections, and to provide for filling vacancies in elective offices,’ ” approved April 3, 1872, in force July 1,1872. The amendatory act was approved May 10, 1881, and in force July 1, 1881.
    The amended section 16 provides: “The county judges and county clerks shall be elected on Tuesday next after the first Monday of November, 1882, and every four years thereafter.” * * *
    Section 17: “The sheriffs shall be elected on Tuesday 'next after the first Monday of November, 1882, and every four years thereafter; * * * and coroners shall be elected on Tuesday next after the first Monday of November, 1882, who shall hold their offices two years, and on Tuesday next after the first Monday of November, 1884, and every four years thereafter, there shall be elected a coroner in each of the counties of this State. ” * * *
    Section 21: “The county treasurers shall be elected on Tuesday next after the first Monday of November, 1882, and every four years thereafter. ” * * *

      This was a petition to this court in which it was represented, that by section 38 of an act entitled “An act to revisé the law in relation to counties, ” approved and in force March 31, 1874, it is made the duty of the county, board - of each county to fix the compensation of county officers at the meeting of such board next before the regular election of officers whose compensation is to be fixed.'
    Petitioner states that he is informed by counsel, and believes, that on the Tuesday after the first Monday of November, 1881, under the constitution and laws of this State, there will be held a regular election in said county for the following county officers, to-wit: County judge, judge of probate court, county clerk, clerk of probate court, and treasurer.
    Petitioner further represents that said county board are at the time of this application in session, and" that this is the meeting next preceding the regular election of said county officers, and it is therefore their duty to fix the salaries of said officers at their present meeting.
    Petitioner further represents that on the 13th of September, 1881, the same being one of the days of the present meeting, a resolution was offered to proceed and fix the salaries, etc., as provided by law, which was by a majority voted down, and thereupon a resolution, declaring that under the constitution and laws of this State the next regular election would occur on the Tuesday after the first Monday of November, 1882, and that said board would not fix the salaries of said county officers until the meeting in September, 1882, was adopted.
    Petitioner therefore represents that said county board do not intend to perform their duty of fixing the salaries of said county officers before the next regular election, but on the contrary they have refused and neglected, and will continue to refuse and neglect, the performance of that duty.
    The prayer of the petition is, that said board of supervisors of LaSalle county may be duly summoned to answer, and that a writ of- mandamus may be issued requiring them, before the first Tuesday after the first Monday of November, 1881, to fix the compensation of the county judge, judge of-the probate court, county clerk, clerk of the probate court, and treasurer.
    The question presented is, whether under the law, construed in the light of the amendment of section 8 of article 10 of the constitution of 1870, an election of county judges, county clerks and county treasurers shall be held in November, 1881, or whether the holding of such election shall be postponed until November, 1882.
    This ease, and the case of The People ex rel. Stinger v. Kingsley, County Clerk of Marshall County, next following, were argued together as one case, the questions in the two cases being of similar character.
    Mr. James McCabtney, Attorney General, Mr. H. T. Gilbebt, and Mr. Consider H. Willett,
    argued the cases orally, in support of the view that the constitutional amendment of 1880, in appointing the election for county officers in November, 1882, did not operate to extend the terms of the present incumbents of those offices to that time, but that, notwithstanding the amendment, an election must be held in November, 1881.
    Mr. John M. Palmee, Mr. Geoege Hunt, and Mr. L. W. Bbewer,
    insisted upon the opposite view, contending that the effect of the amendment was to postpone the election of county officers to November, 1882, and that there can be no election for those offices in November, 1881.
   Mr. Justice Dickey

delivered the opinion of the Court:

The questions arising upon' the record in this case relate to the time fixed by law for the holding of the next general election for county judges, county clerks, county treasurers, and for the election of judges of probate and clerks of probate courts in LaSalle county and certain other counties. Inasmuch as by law such probate judges and clerks of probate courts are to be elected at the same time and in the same manner as that provided for the election of county judges and county clerks, it will be sufficient to ascertain and declare the law relating in this regard to the election of county judges, county clerks and county treasurers.

Does.the law require or authorize a general election to be held for these county offices in November, 1881 ? On the determination of this question this case must turn. It must be confessed the question is not free from difficulty. We have been favored with a full and able discussion by counsel, yet we- do not all take the same views of the questions involved. The proper solution of this controversy depends upon the legal effect of the adoption, in November, 1880, of an amendment to the 8th section of the 10th article of the constitution, and upon the legal effect of statutes passed since that time bearing upon the subject.

We are met at the threshold with the proposition that this amendment, from its very terms, does not become operative until November, 1882, and hence that this amendment is to be construed as though it were declared therein that it should become a part of the constitution at that time, and not before. It need not be denied that the inference sought to be drawn by the latter part of the proposition might well be deduced if the first part of the proposition be true. The 2d section, article 14, of the constitution, speaking as to the effect of the adoption of this class of amendments, says: “If a majority of the electors voting at said election shall vote for the proposed amendments, they shall become a part of this constitution. ” If this language be construed as like words of the constitution,—relating to the adoption of certain articles of the constitution which were separately submitted in 1870,—were construed, it means that the amendment became a potential part of the constitution on the day on which the vote for its adoption was cast. In the absence of matter leading to a different conclusion it must be so held. The statute, however, under which this amendment was, by joint resolution, submitted for adoption, ■ declared expressly that the same, if adopted, “shall, by the- board of canvassers, be declared adopted, and from thence become a part of the constitution of this State. ” (Laws 1877, p. 5.)

In view of the former rulings of this court, and in view of the words of the statute referred to, it seems plain that the General Assembly of 1879, in submitting the amendment for adoption, and the electors of November, 1880, in voting for its adoption, could not have intended or understood that this amendment should not become a part of the constitution until November, 1882. The intention is plainly manifested that the same should be engrafted into the constitution as a component and potential part thereof, at least as soon as it should, by the board of canvassers, be declared adopted, if not as soon as the polls were closed on the day of the voting for its adoption.

We concede that a clause or section of a constitution may be a potential part thereof and yet remain inoperative for a time, for want of a subject to which it can apply,—potential, having force to operate whenever the exigency to which it can apply shall be presented, but inoperative for a time, for want of a fit subject matter on which to operate. This, however, is not, in our judgment, the condition of this amendment. We think when it was declared adopted, it became not only a potential, but an operative part of the constitution, and at once accomplished a change in substance in the condition of the law in relation to general elections for this class of county officers, which change was immediate.

The 8th section of article 10, when adopted in 1870, in its connection with the other clauses of the constitution and the statutes then in force, continued in lawful existence the offices of county judge, county clerk and county treasurer, to hold such terms and be elected at such times that it required an election to be held for each of these offices in November, 1881. Thus stood the law when th¿ General Assembly submitted this amendment, and when it was adopted by the people. Part of this law consisted of statutes passed before the constitution of 1870 was adopted, and so much thereof as was necessary for the election of officers who should, under the constitution, enter upon their duties on the first Monday of December, 1881, had been by the constitution placed beyond the power of the legislature to destroy by repeal, and was in its very essence to that extent a part of the constitutional law of the land, although in the form of a statute, providing for a general election for county officers in November, 1881, and every two or four years after. In other words, in that indirect way the constitution did fix the times for holding general elections for these officers. When, therefore, it is declared that the 8th section of article 10 should be- so changed that these officers shall be elected at the general election to' be held in November, 1882, and that each of these officers shall enter upon the duties of his office on the first'Monday of December after his election, and hold his office for the term of four years, and until his successor is elected and qualified, it was, in our judgment, the intention and legal effect of this declaration to substitute this election for the one formerly provided for, and not to add it thereto,—to substitute this declaration for all law then in force, whether constitutional or statutory, regulating the terms of these officers and the times for the' general election of these officers. The effect of the adoption was to supersede the previous provisions for a general election for these officers, which was for an election in November, 1881, and thereby to extend the time wherein the then incumbents should have the right to hold their offices until the first Monday of December, 1882. If this be so, it ends controversy upon this subject.

But let us look at this matter in another view. This amendment expressly provides for a change, so that after December 1, 1882, the term of county treasurer shall be four years, instead of two, and so that on and after 1882 the general election of all these officers shall be in November .of the years of even numbers, instead of November of • the years of odd numbers. This change could not be accomplished (without shortening the terms of the then incumbents) except in one of two ways. The end could be accomplished by extending the terms of present incumbents one year, or the object could be attained by creating an intervening short term for such offices of one year, from the first Monday of December, 1881, to the first Monday of December, 1882. As already suggested, the amendment expressly shows an intention to bring about this change in some way, and the only practicable modes being the two mentioned, it follows that the amendment, by necessary implication, has declared that it shall be done by one of these modes or the other, and has either indicated that it shall be done upon the first plan mentioned, or it has indicated that it shall be done upon the second plan mentioned, or it has simply declared that it shall be done in one of the two modes mentioned, without indicating in any way which plan should be followed.

"What is there found in the amendment itself to indicate that it was intended to follow the plan first mentioned, rather than the second plan mentioned ? The words of the amendment declare the policy of the State to be, that the terms of such officers shall, as far as practicable, be four years. The extension of the term of the present incumbents for one year, gives to the county judge and to the county clerk each a term of five years, and is a departure from the policy in each case of only one year. Such extension gives to the treasurer a term of three years, being a change approaching the favored term of four years, and not departing from it at all. On the other hand, the creation of an intervening term of only one year, is in each case a departure of three years from the desired term of four years. In the absence of other considerations, that construction should be adopted which conforms most nearly to the policy of the amendment.

Again, the provisions of the amendment indicated a policy of. rendering our general elections less frequent. The plan first mentioned is in furtherance of the policy of the amendment in this regard, while the second plan is in direct violation of the same. It is suggested that the policy of all republican governments demands frequent appeals to the polls for the expression of the'will of the people; but such appeals should not be so frequent as to lead many of the electors to neglect the duty of voting, and thus render abortive every effort to procure a full and fair expression of .the will of the people.

Again, this question is purely political. No private rights are involved. It is a rule of law, well established, that where questions involved are purely political, and depend upon the construction to be given to provisions of doubtful interpretation, the court will not only give great consideration to a construction given by the political departments of the State, but will generally follow such construction implicitly. The legislation of 1881, enacted by the General Assembly and approved by the Governor, repealing the statutes providing for a general election in next November, and in lieu thereof providing for the election of such officers in November, 1882, we regard as a construction of this amendment as intended to supersede and dispense with such an election in 1881. Such a construction in such a case ought not to be disregarded. This is an additional reason in support of the conclusion reached in this case by a majority of the members of this court, that the provisions of the amendment itself indicate that no general election for this class of officers can lawfully be held in the coming November.

But let us assume that this amendment, hy its implications, declares merely that the change in question shall be accomplished in one of the two modes mentioned, and does not furnish any indication as to which of the two plans was intended to be adopted, and consider what would be the legal effect of such a position. If the amendment had said expressly that “this change shall be accomplished, either by electing in November, 1881, successors to the present incumbents of these offices, to hold their respective offices for one year, or by extending the terms of the present incumbents for one year, ” and had there been no indication as to which plan shall be adopted, it seems plain to me that in such case the General Assembly would have been at liberty to adopt either plan, and this though a statute carrying out either plan would be in' direct conflict with the words of some general rule found in the constitution. If, then, we assume that the implications of this amendment go no farther than to declare that this change shall be -brought about in one of the two modes mentioned, and there is nothing to indicate which course was intended, we are clearly of opinion that in such case the amendment clothed the General Assembly with power to adopt either plan, and that therefore the legislation of 1881, postponing this general election until 1882, was fully warranted by this amendment, and is in every respect valid. Such a construction would, in my judgment, necessarily take the case out of the operation of the general provisions of the constitution, which fix the terms for each of these officers at a definite time, and forbid the abridgment or extension thereof by statute. If the constitution clearly declares, even by implication, that a certain end shall be attained, and it can only be attained by certain special legislation, and if the constitution fails to enact any special legislation to that end, the constitutional declaration that the end shall be accomplished, by necessary implication means that it is the duty of the General Assembly to supply appropriate legislation; and the rules of the constitution by which such special legislation is in general prohibited, have no application in such case, for the necessary implication of the amendment demands that in this special abnormal affair such rules must in one way or another be disregarded. In such ease we hold the legislature has the power to choose between these plans, to adopt either mode, and legislate accordingly.

In the ease of The People v. Wall, 88 Ill. 75, where the constitutionality of a statute was called in question, upon the ground that it provided for the election of certain judges of circuit courts in 1877, for a term of tivo years, while the constitution declared that the terms of office of judges of circuit courts shall be six years, it was held by this court that this general provision for terms of six years had no application to legislation enacted to accomplish a change in the circuit system, which change was provided for in the constitution, but as to the mode of accomplishing the change the constitution was silent. So, the amendment of 1880, having provided for a change in the times for the election of certain county officers, and for a change of the terms of certain of them, being silent as to what shall be done in bringing about such change prior to November, 1882, and the change being such that it can not practically be brought about except by doing, prior to the time of which the amendment speaks expressly, one of two abnormal things, and which things are each in contravention of other general provisions of former parts of the constitution, we think that such general provisions, plainly, can have no application to such legislation as may be had in the necessary attainment of the object and end authorized by the amendment itself. In the case of Judge Wall, supra, this court, speaking by Mr. Justice Scott, said: “The general election for all judges of the circuit courts is fixed by the constitution to take place on a certain day, and they are to be elected for the same length of time (six years); but in projecting a new system, that is not practicable, nor is there anything in the constitution that makes it imperative to observe that clause.

If either of these views be correct, it will be seen that the position that the amendment remains inoperative until there can be something on which it can operate, has no application, for these views present a subject matter upon which, by necessary implication, the amendment must operate. It is suggested, that assuming that such officers can lawfully be elected in November, 1881, they would not be elected for a term of merely one year, not warranted by the constitution, but would be chosen for a constitutional term of four years, and their term would, in contemplation of law, be a four years term, until in November, 1882, when this new section would come into operation, and suddenly, at that time, convert the term (which up to that time was a four years term) into a term of one .year. This seems more ingenious than sound; a regard for form rather than substance; a dealing with mere words rather than thoughts. Were it lawful to elect such officers in November, 1881, it would seem very absurd for the Governor to issue commissions to such officers to hold their offices for four years, from the first Monday of December, 1881, and until their successors shall be elected and qualified, when he knows very well that under the constitution they can not, in any view, hold more than one year.

Upon the whole, a majority of the court hold that no general election for county judges, county clerks or county treasurers is required or authorized by law to be held in November, 1881, and hence judgment will be entered denying the writ of mandamus in this case.

Mandamus denied.

Mr. Justice Walker : I do not concur in the conclusion reached in this case.

Mr. Justice Sheldon also does not concur.

Mr. Justice Scott :

I concur in the decision of a majority of the court in denying the peremptory writ of mandamus in this' case.

With that part of the opinion delivered by Mr. Justice Dickey as to the time when the recent amendment to the constitution becomes a part of that instrument I fully concur, but with the- other positions taken in his opinion I do not agree. Undoubtedly the amendment became a part of the constitution when the canvassers declared it was adopted. That is plainly expressed in the act submitting it to a vote of the people, and a different time should not be fixed for it to take effect by judicial construction. From the time of its adoption, the constitution should be read with the amendment as constituting the 8th section of the 10th article, and whatever changes the amendment makes should be regarded as taking effect from that' date.

As there is now no constitutional provision that authorizes or directs an election for the officers enumerated in the amendment to be holden in November, 1881, and as the sections of the act of the General Assembly in force July 1, 1872, in regard to the election of such officers, have been so amended as to provide for an' election in November, 1882, I am of opinion no election can be holden for such officers until the time fixed by the constitution, and the statute passed in pursuance thereof. The fact a day in November, 1882, is fixed for the election of such officers, inhibits as effectually an election at an earlier day as if the constitution and the statute had positively forbidden it.

I am further of opinion there is nothing in the constitution or the act of the General Assembly that can be construed as extending the terms of the present incumbents of those offices. By law their respective terms will expire in 1881, but the 8th section of article 10 of the constitution, both before and since its amendment, continues them in office until their successors “shall be elected and qualified. ” The constitution in that regard has not been changed by the recent amendment. No successors to the present officers can be elected until November, 1882. Until that time the present county officers, notwithstanding their respective terms of office may sooner expire, will hold over under the provisions of the constitution, in precisely the same manner as they would if the people should fail to elect their successors at a general election appointed by law.


author: Per Curiam : Mr. Justice Scott : Mr. Justice Walker: Mr. Justice Sheldon,

text:
    The People ex rel. John C. Stinger v. Jonathan C. Kingsbury, County Clerk of Marshall County.

      Filed at Ottawa September 27, 1881.

    Ootjntx treasurers—extension of their terms of office for one year, under the constitutional amendment of 1880. A county treasurer who was elected at the general election held in November, 1879, continued to hold the office until the 27th day of February, 1881, at which time he died. Under the constitution and law in forée at the time of his election, the term for which he was elected would have expired on the first Monday of December, 1881. But the amendment of 1880 of sec. 8 of art. 10 of the constitution of 1870, with the legislation in pursuance thereof, operated to extend the terms of office of the then present incumbents of the office of county treasurer, and of certain other county offices, until the first Monday of December, 1882. So the unexpired part of the term, in this case, was more than one year, and it was directed that a special election be ordered to fill the vacancy, it not being competent for it to be filled by appointment except when the unexpired portion of the term is less than one year.
    This was an application to this court for a writ of mandamus. This ease, and the preceding ease of The People ex rel. Lynch v. The Board of Supervisors of LaSalle County, being of like character, were argued together as one case.
   Per Curiam :

This is an application for a writ of mandamus, to compel the county clerk of Marshall county to call a special election to choose a county treasurer, to hold for the unexpired part of the term to which one William E. Thompson was elected in November, 1879. Thompson entered upon the duties thereof on the first Monday of December, 1879, and continued to hold the office until the 27th day of February, 1881, on which latter day he died, whereby that office then became vacant.

The clerk refuses to call such election, insisting that the unexpired. part of the term is less than one yeár. If this were so it would be the duty of the board of supervisor's to fill the office by appointment. The record shows that the board did, in fact, on the second day of March, 1881, appoint one James Law county treasurer, who qualified, and entered upon the duties of the office. The relator insists this appointment, under the facts, was unlawful and void, and should be treated as a nullity, and that the term of county treasurer has been extended by law one year, and until the first Monday of December, 1882. We have at this term, in the ease of The People ex rel. v. Board of Supervisor's of LaSalle County,(ante, p. 495,)held that no general election for county treasurers is authorized by law to be held before November, 1882, and that under the constitution and law now in force, the present incumbents are entitled to hold their respective offices until the first Monday of December, 1882. Accepting that decision as settling that question, it follows that the term for county treasurers has been extended until December, 1882, and that the unexpired part of the term in this case is in law more than a year, hence the appointment by the board was not lawful, and the respondent ought to proceed at once to call a special election to fill the vacancy.

The mandamus is therefore allowed.

Mandamus allowed:

Mr. Justice Scott :

I can not concur in this decision, and for an expression of my views reference is made to my separate opinion in The People v. Board of Supervisors of LaSalle County, decided at the present term.

Mr. Justice Walker:

I hold there should be a general election in November, 1881, in this as in other cases.

Mr. Justice Sheldon,

dissenting: I am of opinion the term of the office .will expire on the first Monday of December, 1881.


author: Mr. Chief Justice Craig

text:
    Solon Humphreys v. John Allen.

      Filed at Ottawa November 10, 1881.

    1. Fobeolosube—right to fund arising from sale on foreclosure. Where a decree for the foreclosure of a mortgage on railroad property, and a sale, provides that the proceeds of the sale shall be brought into court to await the further order of the court as to its distribution, saving the rights of all persons in the fund for future determination, a party may, on petition, after such sale and before a distribution is made, have an order to pay him out of the fund any moneys to which he may be entitled as having been advanced to save the mortgaged property from levy and sale for taxes due thereon, which were a prior lien, before payment to the other creditors.
    2. Same—taxes paid by mortgagee to save property from sale. Where a deed of trust on railroad property provides that the mortgagor shall pay the taxes on the property, a creditor secured by the trust deed may, as a mortgagee, pay such taxes when the mortgagor fails to pay the same, and in such case he will, as to the taxes so paid, have a prior lien in equity upon the mortgaged premises or on the fund arising from their sale on foreclosure.
    3. Practice—objection to evidence for vndefiniteness and want of particularity. The objection to a party’s testimony as to the taxes paid by him upon railroad property, giving only the sums paid and when paid, that it is not sufficiently definite, in failing to show the amount of the taxes due and paid to the collector of each county through which the road was located, and for want of the production of the tax receipts, will not avail when the party objecting, on the cross-examination, fails to call for a detailed statement and for the tax receipts.

      4. Beheabing in chanoeby—not allowed if party is chargeable with negligence. A rehearing ■will not be granted in a chancery cause to a defendant, when, by the exercise of proper diligence, he might have produced all the facts on the hearing, relied on in support of the motion, nor when the application fails to show a meritorious defence.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Mr. Wager Swayne, and Messrs. Tenney, Flower & Cratty, for the appellant.
    Messrs. Stevens & Lee, for the appellee.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

On the first day of April, 1878, John and John N. Allen filed a hill in equity, in the circuit court of Peoria county, against the Peoria, Pekin and Jacksonville Railroad Company and others, in which they prayed for the appointment of a receiver, and for the foreclosure of certain deeds of trust. On the 14th day of June, 1879, Francis B. Cooley and James Bird, trustees named in the deeds of trust, filed a cross-bill to foreclose such deeds of trust. On the 7th day of August, 1879, a decree of foreclosure was rendered on the cross-bill, in which the property was ordered sold for the payment of $1,507,043.06, found to be due. The decree directed the payment of costs, and certain other specified sums, from the proceeds of sale, and then required the master to bring the residue of the money arising from the sale into court, to abide the order of the court. Under this decree the railroad and railroad property were all sold, on the 14th day of November, 1879, to Solon Humphreys, appellant herein, for the sum of $950,000. The sale was confirmed, and a deed executed to the purchaser.

On the 20th day of July, 1880, appellee, John Allen, filed an intervening petition, in which he in substance alleged, that in November, 1876, said railroad company was indebted for State, county and municipal taxes, before that time lawfully levied, to an amount exceeding $12,000; that the taxes were a lien on all property belonging to the company; that the railroad company was wholly unable to pay the taxes and run and operate its line of road; that the tax collectors in the various counties through which the road extended threatened to levy upon the property of the company, and sell the same in satisfaction of the taxes, unless they were paid; that for the purpose of preventing a levy upon the premises and property of the company, and a sale thereof, and to enable the company to continue to run and operate its line of railroad, and pay its current expenses, and continue to pay interest upon its bonded indebtedness, petitioner, then being president of the company, on November 6, 1876, advanced for the company, from his own private means, $10,149.86, and on November 8, 1876, the further sum of $1855.10,—in all $12,004.96. The petition contained a prayer that the master in chancery, out of the proceeds of the sale of the railroad and its property remaining in his hands, pay petitioner the amount by him advanced, and interest thereon.

It is first urged, that as appellee failed to incorporate his claim for taxes advanced in his original bill brought against the railroad company, he can not obtain a decree under this petition. It is clear that appellee had the right to amend his bill, by leave of the court, at any time before final decree, and set up this claim for money advanced for and on account of the railroad company. Did he waive or lose the right to recover for the money advanced by failing to amend his bill and make the proof on the original hearing ? Had the original decree made a distribution of the funds arising from the sale, and thus definitely settled the rights of all the parties to the proceeding, it may be appellee would have been concluded. But such was not the case. The decree provided, “that the claims and rights of all parties to said bonds and coupons, and of all other persons having an interest in the fund to arise from said sale; accrued or accruing either before or after the appointment of the receiver, be reserved for future determination by the court, and that all such persons shall have the same rights, as against the fund arising from said sale, as they would have against the property sold, or any part of it, prior to' such sale. ” Here appellee had an interest, in the fund. He claimed a priority over certain other creditors for the amount he had advanced to relieve the property from taxes, and under the terms of the decree his rights could be determined and settled after the sale as well as before.

It is also urged that the petition was insufficient, and when considered in connection with the evidence of appellee it did not justify so large a decree in appellee’s favor as against the rights of other prior creditors. The taxes which appellee paid were a prior lien on the railroad property, and had they not been paid, the property, no doubt, would have been sold, and taken from the creditors who held the mortgages as security for the payment of their debts. The deeds of trust provided that the railroad company should pay the taxes, and when the company failed to either pay the taxes or produce the money .by which they could be paid, appellee, as a mortgagor, had the clear right to advance the money from his own funds, pay the taxes, and call upon a-court of equity to decree him the amount so advanced from the proceeds of the sale of the mortgaged property.

Appellee testified that he advanced $12,004.96 from his own personal means to pay the taxes assessed against 'the property for the years 1873, 1874 and 1875, by the authorities of Peoria, Tazewell, Mason and Morgan counties; that ■the company had not the money to pay operating expenses and taxes, and he advanced the money to prevent a levy upon and sale of the property. If this evidence is true, and it stood uncontradicted before the court when the decree was rendered, a clear case was made out for equitable relief.

Objection is made to appellee’s evidence, because it is not sufficiently definite; that he fails to show how much money was due and paid to the collector of each county; that he shows no vouchers or receipts. The evidence of appellee shows the amount of money advanced and the time when it was paid, and if a more definite and detailed statement was required by appellant, it was his duty to call for it on cross-examination of the witness. This he failed to do, and he is in no position now to complain of the testimony as it was given. Had appellant called on appellee, on cross-examination, for a detailed statement and a production of receipts for each item paid, and appellee had refused or had been unable to give such facts, .then appellant might reasonably have insisted upon the insufficiency of the evidence.

It is also urged that the court erred in denying the application for a rehearing. It appears that the cause was referred to the master to take proof on the 20th day of July, 1880; that appellee was examined as a witness before the master, and cross-examined by one of the attorneys for appellant, but no other testimony was taken. On the 4th day of September, 1880, a hearing was had before the court, which resulted in a final decree in favor of appellee. Counsel for appellant were present, but from an affidavit filed on the motion for a rehearing, it seems they did not understand that the cause was being heard on its merits, but supposed the hearing was “as to the sufficiency of the petition, as if the same were being heard upon demurrer.”

We do not think the affidavit shows any substantial ground for a rehearing. The petition was called up for a hearing, the evidence in support of the petition was produced which had been taken on a reference of the cause to the master. It is not readily seen, under such circumstances, how any one could be misled; but, aside from this, the decision was withheld some two weeks after the hearing to afford counsel for appellant an opportunity to further cross-examine appellee, if they saw proper. If appellant had exercised proper diligence, he might have produced all the facts relied upon on the motion for a rehearing before the court, on the hearing. If he could have done this, and through negligence failed, the circuit court did right in overruling the motion for a new trial, as was held in Laflin v. Herrington, 17 Ill. 401. The law rewards diligence, and will not excuse negligence. New trials will not be granted to enable a party to produce merely cumulative evidence, nor to produce newly discovered evidence, if the party, by the use of reasonable diligence, could have obtained the evidence on the trial.

Again, it does not satisfactorily appear, from the application for a rehearing, that appellant has a meritorious defence against appellee’s claim. If the taxes advanced were a valid lien on the railroad property, and it was liable to be sold for the payment thereof, and appellee, in order to save the property for himself and other creditors, advanced the money from his own means and saved the property, he ought, in equity, to have the money refunded from the proceeds of the •property before a distribution is made among other creditors.

It is said appellee has certain lands in his name belonging to the railroad company. If that be true, such fact has no legitimate bearing on this controversy. That matter can be adjusted in a proper proceeding between the parties.

The decree of the Appéllate Court will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    The People ex rel. Julian S. Rumsey, Collector, etc. v. Asahel Emigh.

      Filed at Ottawa November 10, 1881.

    1. Appeal—duty of appellant to file transcript. It is the duty of the appellant who takes an appeal from the county to the circuit court, to perfect the same by having a transcript of the record in the county court filed in the circuit court, and failing to do so he is in default, and liable to have his appeal dismissed.
    2. Same—dismissal of suit on appeal, for want of prosecution. A defendant, while in default in causing a transcript of the record to be filed in the appellate court, on his appeal, has no right to claim a default against the plaintiff, and have the suit dismissed for want of prosecution.
    3. Costs —judgment can. not ,6e against one not a party. In a suit by a collector for judgment against property for taxes, on appeal to the circuit court, it is error on the dismissal of the suit to render judgment against the county for costs.
    Whit of Eeros to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.
    Mr. Consider H. Willett, for the plaintiff in error.
   Mr. Justice Walker

delivered the opinion of the Court:

The proceeding out of which the question arises in this case, was an application by the county collector for judgment for the taxes for 1871. The county court having rendered a judgment therefor, an appeal was prosecuted to the circuit court, and an appeal bond filed therein. On the 15th of May, 1874, the appeal was dismissed for- want of prosecution, at defendant’s • costs. He subsequently procured the order to be set aside, and the cause reinstated on the docket. The appeal was again dismissed, for the same cause, at the May term, 1877, and by stipulation the order was set aside and the cause reinstated on the docket, by order of the court, at the same term. On the 16th day of April, 1878, the cause being reached for trial, and no one appearing for plaintiff, the cause was dismissed, on the motion of defendant, for want of prosecution, at the costs of the county. The cause was docketed, “The People of the State of Illinois ex rel. etc. v. Asahel Emigh.”

An examination of the transcript filed in this court fails to show that any transcript of the judgment and proceedings in the county court was ever filed in the circuit court, or any stipulation as to its contents, or other matter upon which the circuit court could act; nor do we find that it is shown or claimed there were any taxes claimed to have been due the county, for which judgment was sought. When the case was reached on the docket, there was nothing in the record for the court to try. Defendant in error had prayed an appeal, and it was his duty to have perfected it by having a transcript of the county court filed in the circuit court, and failing to do so he was in default, and liable to have his appeal dismissed unless he had filed" or caused to he filed such a transcript. Whilst he was so in default he had no right to claim a. default against plaintiff. It was not bound to act while'the defendant -was in default. On reaching the case, the court should have dismissed the appeal instead of the suit.

.Again, there is nothing to show that the county was a party to, was interested in, or in any manner connected with, the suit. It was not docketed in the name of the-county, either as plaintiff or defendant. There is nothing in the record from which it can he inferred that the county claimed anything by the suit. Then why dismiss the suit at the costs of Cook county, and render a judgment against it for the recovery of costs ? We are unable to perceive the slightest ground to sustain the judgment.

This view of the case renders it unnecessary to determine whether a judgment can be rendered against a county under the 17th section of the Costs act, and the 34th section of the act in relation to counties, which may seem to conflict. We therefore refrain from the discussion of those sections*

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scott

text:
    Ella B. Hunter v. James M. Hunter.

      Filed at Ottawa November 10, 1881.

    li Appeal—does not lie except on final decree or judgment. A decree upon the verdict of the jury that a complaining wife is entitled to a separate maintenance from the defendant, declaring the wife to be so entitled, but not finding the amount to be paid, leaving that for future determination, is not a final decree from, which an appeal lies, but is only interlocutory.
    2. No appeal will lie from a merely interlocutory order or decree made in the progress of a cause, either at law or in equity.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    Mr. C. B. Starr, for the appellant:
    The Appellate Court ought to have dismissed the appeal of the appellee, because the ease was not ripe for an appeal, the decree of the circuit court being only an interlocutory decree. ■
    The circuit court simply found that the complainant was entitled to a separate maintenance, and continued the ease for further testimony for the amount to he paid. Such a decree is only interlocutory, and is not final in any sense.
    It is a well settled rule in equity practice, as well as in proceedings at law, that no appeal lies from any interlocutory order. Gage v. Eich et al. 56 Ill. 298; Woodside et al. v.
      Woodside et al. 21 id. 207; Pentecost v. Magahee, 4 Scam. 326; Myers et al. v. Manny et al. 63 Ill. 213; Racine and Mississippi Railroad Co. v. Farmers’ Loan and Trust Co. et al. 70 id. 249; Blake v. Blake, 80 id. 524.
    Mr. James N. Orb, for the appellee:
    The decree finding that the wife was entitled to a separate maintenance was final, fixing the future status of the parties. The finding the amount to he paid the wife for a separate maintenance is always a secondary part, and is under the control of the court, and subject to alteration as the circumstances may require.
    On the husband’s appeal from this order, the Appellate Court reversed the decree for separate maintenance, and remanded the cause to the trial court, with directions to dismiss the hill, from which the wife appealed.
    We further say that we think this proves beyond question that the decision of the Appellate, Court upon this point, when it decided that “the decree of the court below we regard as final,-r-it fixes the status of husband and wife, and is as final as a decree of divorce would be,” is correct. See Appellate Court opinion, 7 Bradw. 253; also, Blake v. Blake, 80 Ill. 523; Derrick v. Lamar Ins. Co. 74 id. 404; Burnham v. Lamar Ins. Co. 79 id. 160.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is for divorce and separate maintenance, and was brought by Ella B. Hunter against James M. Hunter. In the circuit court two issues were submitted to a jury for their judgment on the questions of fact involved:

First—Has defendant been guilty of extreme and repeated cruelty, as charged in complainant’s bill; and if not,

Second—Has defendant been guilty of such conduct and treatment towards complainant as justified her in separating herself from and living apart from defendant.

As to the first proposition submitted, the jury found defendant not guilty; and as to the second issue, they found defendant had been guilty of such cruelty toward complainant as justified her in separating herself from and living apart from defendant. Thereupon the court entered an order dismissing so much of the bill as prayed for a divorce, and further decreed complainant was entitled to separate maintenance from defendant. On defendant’s appeal, the Appellate Court reversed the decree of the circuit court, and remanded the cause, with directions to that court to dismiss the bill. Complainant brings the case to this court on appeal.

It would seem the decree of the circuit court was not final in that sense from which an appeal would lie. The court simply decreed, on the verdict of the jury, complainant was entitled to separate maintenance from defendant. What sum defendant should pay for that, purpose was not determined. The cause was continued to hear evidence. Until the sum defendant should pay for the separate maintenance of complainant was determined, and a decree pronounced definitely settling the rights of the parties, it could not be said any final decree had been rendered in the cause. The order made by the court touching separate maintenance for complainant was interlocutory, and the law is well settled no appeal will lie from an interlocutory order or decree made in the progress of a cause, either at law or in equity. Gage v. Eich, 56 Ill. 297.

As the Appellate Court had no jurisdiction to hear defendant’s appeal, it follows the judgment rendered against complainant for costs was erroneous, and its judgment must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.


author: Mr. Justice Dickey

text:
    Levi Spradling v. J. A. Russell.

      Filed at Ottawa November 10, 1881.

    Affidavit of claim—may be allowed after plea filed. Under the statute allowing amendments, the court has the power, upon proper cause being shown, to allow the plaintiff to file an affidavit of claim even after a plea has been filed, and then strike such plea from the files for want of affidavit of a meritorious defence, and when this is allowed it will be presumed that sufficient cause was shown, in the absence of the contrary appearing in the bill of exceptions.
    Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.
    This is an action by Russell against Spradling and one Miller, brought to the October term, 1876, which began on the 9th day of that month. The summons was served on both defendants more than ten days before the return day. The declaration was filed twelve days before the term began. The first count was upon a promissory note alleged to have been made by defendants, to which was added the common counts. No affidavit of the nature and extent of the claim was filed until afterwards, as stated hereafter. Nine days before the term began, Spradling filed a plea of the general issue to the declaration. No further action was taken until the sixth day of the term. On that day, (October 14, 1876,) on motion of plaintiff, the court gave leave to file an affidavit of claim with the declaration, such as is provided for in section 37 of the Practice act, and at that time such affidavit was filed by plaintiff. Thereupon, on the same day, a motion was made by plaintiff that the plea of Spradling should be stricken from the files. This motion was not acted upon for over five weeks, and until the 29th day of November, and near the end of the term. On that day the motion was sustained, and Spradling’s plea was, by order of the court, stricken from the files. To this ruling Spradling then and there excepted. In this condition the cause was continued until the next term. At the next term, (on January 16, 1877,) there being no plea on file, the defendants were regularly called, and not answering, the default of each was entered, and the court assessed the damages at §51702.21, and final judgment was rendered against both' defendants for that sum and for costs. To this proceeding Spradling then and there excepted. Spradling brings the case here and seeks to reverse this judgment.
    Messrs. Bushnell, Gilman & Cook, for the appellant.
    Messrs. John H. & Chas. Fowler, and Mr. J. B. Bice, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

At. common law, no judgment, without a trial of the issue tendered, could be rendered against a defendant who denied his liability by a -valid plea tendering an issue upon the allegations of plaintiff. Under section 37 of our Practice act, (Rev. Stat. p. 779,) in an action upon a contract for the payment of money, a plaintiff is entitled to judgment by default, if he “shall file with his declaration an affidavit showing the nature of his demand, ” and the net amount due to him from the defendant, unless there be filed a plea, and therewith an affidavit of the merits of the defence.

The statute (Practice act, sec. 24,) says, “that at any time before final judgment in a civil suit, amendments may be allowed upon such terms as are just and reasonable * * * in any matter, either of form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defence. ”

The filing of an affidavit of claim is surely a “proceeding, ” which (by statute) may be adopted to enable a plaintiff to maintain his action. A majority of this court hold that the circuit court has the power, under the statute, at any time before final judgment, to amend the papers constituting the foundation on which a plaintiff claims judgment, and that this, in a proper case, may be done by permitting an affidavit of claim to be filed, even after” a plea has been filed. The bill of exceptions does not purport to show what cause was shown in support of the motion for leave to file such an affidavit in this case. It would doubtless be an improvident exercise of discretion in a court to allow an affidavit of .claim to be filed at a stage of the case so late as here shown, without good cause brought, to the knowledge of the court in support of the motion. This record fails to show that such cause was not shown. Unless the contrary is affirmatively shown, we must assume that such cause was shown, and that the circuit court acted properly. After the affidavit of claim was properly on file, the plea of Spradling, unsupported by an affidavit of merits, was under our statute no sufficient bar to the action, and it was entirely proper to strike the same from the files.

The record shows that defendant Spradling had full opportunity to make defence, if any he had. He was present by counsel when leave was given to file the affidavit of claim; also, when his plea was stricken from the files, and also when his default and final judgment were entered, for at each of these proceedings the record shows that he “then and there excepted.”

The judgment of the circuit court is therefore affirmed. ’

Judgment affirmed.