82 Ill. App. 380 | Ill. App. Ct. | 1899
delivered the opinion of the court.
The question to be decided is whether cause Avas shown for setting aside the judgment of April 30, .1896, which Avould be sufficient on a writ of error coram nobis. It appears from the foregoing statement of facts that the cause Avas first on the regular trial calendar; that subsequently it was placed on the short cause calendar; that afterward it was stricken from the latter calendar, and that up to April 30, 1896, when the appeal was dismissed, it had remained continuously on the regular trial calendar from the time when it was first placed on that calendar.
Section 14 of the practice act provides:
“The clerks of the courts shall keep a docket of all the causes pending in their respective courts in which shall be entered the names of the parties, the cause of action and the name of the plaintiff’s attorney, and he shall furnish the judge and bar at each term with a copy of the same,” etc.
Sec. 16 provides that all causes shall be tried or otherwise disposed of in the order they are placed on the docket, etc. The docket thus made up is the regular trial calendar. Section 1 of the short cause calendar act makes it the duty of the clerk of each court of record to prepare a trial calendar, in addition to the regular trial calendar, to be known as the short cause calendar, and to place suits on that calendar, upon proper notice and affidavit, as prescribed by the section.
Section 2 makes it the duty of each judge of a court of record to designate at least one day in each week for the trial of cases on the short cause calendar, and provides that suits once placed thereon shall remain thereon until disposed of in their order.
Section 5 is as follows:
“ If a suit which is upon the regular trial calendar shall be placed on the short cause calendar it shall be stricken off the regular trial calendar, and shall not again be placed thereon except upon notice to the defendant, his agent or attorney.” 3 S. & C.’s Stat., O. 110, par. 97-101.
It is manifest from these provisions that the duty of making up both the regular and short cause calendars is imposed on the clerk, and we are of opinion that it is intended by the statute that the clerk, when he places on the short cause calendar a suit which is on the regular trial calendar, shall, at the same time, strike it off the latter calendar. JBy the statute the application to place a cause on the short cause calendar is made solely to the clerk, the é ** court has no duty to perform in the premises and has no means of knowledge of an application to place a cause on the short cause calendar, or even of its being on that calendar, until the calendar is placed before the court. It being the sole duty of the clerk to make up the calendars, and the statute being peremptory, that when a suit on the regular trial calendar is placed on the short cause calendar it shall be stricken off the former calendar, and the court having no knowledge of the transfer from the regular calendar to the short cause calendar at the time such transfer is made, and not being required by the statute to act in any way in respect to such transfer, we can not avoid the conclusion that it is the duty of the clerk on making such transfer to strike the cause from the regular trial calendar. Had the court known, April 30, 1896, when appellee’s appeal was dismissed, that it had been taken from the regular calendar and put on the short cause calendar, and afterward stricken from the latter calendar, but that it had never been stricken from the regular trial calendar and restored thereto, as provided by section 5, quoted, supra, we think it clear that the order of April 30, 1896, would not have been made. In contemplation of law the cause not being regularly on the regular trial calendar did not then stand for trial. The court, in making that order, was misled by the failure of the clerk to strike the cause off the regular trial calendar when he placed it on the short cause calendar.
A default of the clerk is one of the recognized grounds for a writ of error corara nobis. Pickett’s Heirs v. Legerwood, 7 Pet. 144; Watson v. Chadsey, Ill. App., Oct. T., 1898, Gen. No. 7,927, unreported.
In Tidd’s Practice, Section 1137, the author says:
“ So, upon a judgment in the King’s Bench, if there be error in the process or through the default of the clerk, it may be reversed in the same court by writ of error corma nobis.”
We find no reversible error in the record, and the judgment will be affirmed.
Judge Sears took no part in the decision of this case.