162 Ill. 167 | Ill. | 1896
delivered the opinion of the court:
The'statute requires that the renunciation shall be filed in the office of the clerk of the county court, and entered by the clerk at large upon the records of the court, before it shall become a bar, etc. (Rev. Stat. chap. 41, sec. 13.) Plaintiff in error is entitled to the order prayed for in his petition if the act of Hiram Smith’s attorney in taking the renunciation from the clerk’s office did not destroy the act of filing the same, and we are of opinion that it 'did not.
In Hamilton v. Beardslee, 51 Ill. 478, it was held that to constitute the filing of a paper in a cause it must be placed in the hands and under the control of the clerk— must pass into his exclusive custody and remain within his power. In Kiser v. Heuston, 38 Ill. 252, it was said that, after receiving and filing a deed for record, it, in contemplation of law, was recorded, and that the recorder violated his duty in permitting the mortgage to be withdrawn before it was spread upon the records. And in Hartford Fire Ins. Co. v. Vanduzor, 49 Ill. 489, and Deatherage v. Roach, 76 id. 321, it was held that papers in a cause, when once filed with the clerk, become files of the court, and cannot be withdrawn without leave of the court.
In the case at bar the written renunciation was duly delivered to the clerk of the county court and left in his custody and control. The clerk put his file-mark upon it and also docketed it in the probate docket. It then, in the light of the above decisions, most certainly became a part of the records of the court. It had passed completely out of the control of the party filing it, and it could not be subsequently withdrawn without an order of court. The clerk had no authority to permit its withdrawal. The fact that the paper was withdrawn at the suggestion of the comity judge is of no importance. His meeting on the street the attorney of Hiram Smith and volunteering that advice was in no sense a judicial act.
It will be unnecessary to discuss the claim of defendant in error that the mere filing of a paper, without its being recorded, is not notice to the public, etc., for that question is not before us. The witness Wilson, who claims to have purchased the house and lot without notice of the renunciation, is not a party to this proceeding. He does not appear in the record other than as a witness.
It follows from the views we have expressed that the circuit court erred in dismissing the petition. The order of that court will therefore be reversed and the order of the county court directing the renunciation to be recorded will be affirmed.
Order reversed.
