The People v. Bristow , 391 Ill. 101 ( 1945 )

I dissent from the majority opinion. This is a mandamus suit to compel the Appellate Court to expunge an order entered by it.Mandamus will never lie to control judicial discretion of a judge, whether the case be decided rightly or wrongly. (People exrel. Briggs Turivas v. Cook, 311 Ill. 429; People ex rel. Waver v. Wells, 255 Ill. 450; People ex rel. Brown v. Gibbons, 161 Ill. 510. ) The majority opinion disposes of the case as though the only question in it was whether the Appellate Court properly set aside its order entered at the February term, 1944, and gave leave at the succeeding term in May, 1944, to reinstate the cause upon the docket. I do not fully agree with the court in its conclusion upon this question. However, the opinion completely fails to pass upon the fact that a separate appeal was prayed and allowed by the Appellate Court. This prayer for leave to appeal was contained in the same paper containing the motion to reinstate the former appeal, and the order allowing the appeal was in the same order reinstating the first appeal.

Section 76 of the Civil Practice Act (Ill. Rev. Stat. 1943, chap. 110, par. 200,) was amended in 1941, and now provides that the right to appeal is not exhausted by filing notice of appeal in the trial court. It also provides "The fact that appellant may have filed a notice of appeal prior to the filing of his motion for leave to appeal shall not deprive the reviewing court of the power in its discretion to grant leave to appeal." In this case the prior notice of appeal was filed in the circuit court, and upon application of the appellant was dismissed without prejudice. When the motion to reinstate this appeal was filed it contained also this specific prayer: "(f) For leave to prosecute appeal in said cause to this court from the purported final decree or judgment entered in said cause, as will appear from said completed transcript when filed herein." The order entered by the court on this portion of the prayer was: "6. Bradford Supply Company, Inc., appellant herein, is hereby given and granted leave to prosecute its appeal in said cause to this court from the final decree or judgment entered in said cause by the circuit court of Pulaski County, Illinois, as the same may appear from said completed transcript of the record in said Circuit Court in said cause, when filed herein."

It thus clearly appears that the respondents entertained a petition for leave to appeal after a prior notice of appeal had been given in the circuit court, and also allowed such appeal. Under the statute the Appellate Court had jurisdiction to do this. Whether the respondents properly decided that the appellants were not guilty of culpable negligence is wholly beside the question. If this question was decided erroneously it is an error of law, not want of jurisdiction. We have authority to expunge an order of an inferior court only for want of jurisdiction. People ex rel. Courtney v. Prystalski,358 Ill. 198; People ex rel. Lax v. Ehler, 353 Ill. 595; People exrel. Cassidy v. Fisher, 372 Ill. 146.

It has been held that the Appellate Court has no power to require a municipal court to expunge matters from the record which are improper but which do not affect the jurisdiction of the Appellate Court, (People ex rel. Finn v. David, 328 Ill. 231, ) nor to compel the Appellate Court to expunge an order where it is claimed that constitutional questions were involved, where it appeared said claim was without merit or the questions raised moot. (People ex rel. Village of Westchester v. O'Connor,378 Ill. 249.) And it seems to me that the majority opinion in holding that the Appellate Court was without jurisdiction to reinstate the appeal taken upon notice from the circuit court has in effect held that the Appellate Court was without jurisdiction to entertain a petition for appeal and grant the same within one year, as provided by the express language of the statute.

The Appellate Court did have jurisdiction to entertain another appeal within the year under section 76 of the Civil Practice Act. The petition for such second appeal and the order allowing same were entered within the one-year period. In O'Brien v.People ex rel. Kellogg Switchboard and Supply Co. 216 Ill. 354, this court defined what constitutes jurisdiction in the following language: "Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction. [Citations.] Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. [Citations.] * * * Jurisdiction does not depend upon the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may be. [Citations.]" The definition of jurisdiction as set out in the O'Brien case has been followed many times by this court.

Applying it to the situation before us, petition was made to the Appellate Court to allow an appeal within the year. An order was made by the Appellate Court allowing that appeal. Coupled with this petition and order, the Appellate Court did other things which the majority opinion says was beyond its jurisdiction. If it be assumed it is correct in this respect, should it expunge also a petition and order within its jurisdiction? It may be that the respondents did not recite or set forth all of the matters which section 76 requires an appellant to do, but if it is defective in this respect it is merely an error of law, subject to be corrected by this court. The case comes within that part of the O'Brien case wherein we said that "Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases towhich the particular case belongs." The order which the majority opinion requires to be expunged includes matter which the statute provides belongs to the class of cases to which the particular matter in this case belongs, viz., — a right to petition for an appeal to the Appellate Court, if the first appeal from the circuit court is defective or otherwise void.

No authority has been cited authorizing a part of an order of an inferior court to be expunged; nor would it be of any consequence, because if the Appellate Court had authority to grant the second appeal of its own motion upon petition it would not be material whether the appeal, perfected by a notice in the circuit court, was effective or not. I think the Appellate Court had full jurisdiction to act upon this second matter, and its effectiveness was not controlled or affected by its power or lack of power to reinstate the former appeal, and therefore the majority opinion is in this respect erroneous.

I also am of the opinion that it was within the power of the Appellate Court to construe its former order allowing the dismissal of the first appeal without prejudice. Section 9 of the Appellate Court Act (Ill. Rev. Stat. 1943, chap. 37, par. 33,) provides: "The said appellate courts shall be vested with all power and authority necessary to carry into complete execution all their judgments, decrees and determinations in all matters within their jurisdiction." It is to be noticed that this gives power over matters that are not included within judgments or decrees. In this case it comes within the specification "determinations," since it was a dismissal without prejudice.

The Appellate Court entered an order — it had the facts before it — and if any question of its meaning arose, it had the right to interpret its own order. And in this respect I think the language of the court in the case of The Palmyra, Escurra,Master, 12 Wheaton, 1, 6 L.ed. 531, is clearly applicable. In that case the Supreme Court of the United States says: "The difference between a new appeal, and a reinstatement of the old appeal, after a dismissal from a misprision of the clerk, is not admitted by this court justly to involve any difference of right as to the stipulators. Every court must be presumed to exercise those powers belonging to it which are necessary for the promotion of public justice; and we do not doubt that this court possesses the power to reinstate any cause dismissed by mistake." In that case it was a mistake; in this case it was necessary because of the misprision of the clerk in failing to enter the judgment. And in this connection it should be noted that the statute provides that the appeal shall be taken from the entry of the judgment, and not from the rendition of the judgment.

Many things are said in the opinion about the fact that the judgment was rendered when the court announced it, and with this I fully agree, but that does not eliminate the distinction between the rendition and the entry. The one is the act of the court, and the other the act of the clerk. (Blatchford v.Newberry, 100 Ill. 484.) But when the court undertook to order that the judgment be considered as of the date he pronounced or rendered it he did not in any way affect the time when the clerk entered it. When the judgment is rendered, it is the duty of the clerk promptly to enter it in the records. Until he does enter it in the records, time does not run against an appeal, and therefore the discussion about the time of the rendition of the judgment has no bearing upon rights of parties which depend upon the performance of the duties of the clerk to enter a judgment.

I am therefore of the opinion that the conclusion reached by the majority of the court is wrong both in respect to employing a writ of mandamus to expunge an order entered in the discretion of the Appellate Court, and also in holding that the court had no jurisdiction to construe its own determination. Section 4 of the Civil Practice Act (Ill. Rev. Stat. 1943, chap. 110, par. 128,) specifically provides: "This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto." It seems to me that this salutary rule for the construction of the Civil Practice Act has not been observed.

Mr. JUSTICE STONE, also dissenting.