104 Ill. App. 309 | Ill. App. Ct. | 1902
delivered the opinion of the court.
Tfye sole question presented in this case is whether the chancellor had jurisdiction to enter the order of July 11, 1898, vacating the dismissal of the cause at the previous May term for want of prosecution.
By an additional record filed by defendants in error it appears, among other things, that on April 11, 1898, the following general order was entered by the Circuit Court, the judges of said court sitting “ in banc,” viz:
In the Matter of the General Call) of the Chancery Docket. j
Ordered that a general call of all chancery cases pending in this court, commenced before January 1, A. D. 1898, be made as follows: By Judge Burke, June 1 and 2,1898; by Judge Tuley, June 6 and 7, 1898; by Judge Dunne, June 21 and 22, 1898.
li It is further ordered that unless for good cause shown each judge will dismiss for want of prosecution all cases not ready for trial and wherein no order has been made or action taken before a master for one year prior to the first day of January, A. D. 1898.
“ And it is further ordered that any case so dismissed may for good cause shown, be reinstated by the court upon application within sixty days from date of dismissal.”
Also there appears from said record th at certain causes were dismissed in the general call of Judge Burke’s docket, without costs, on June 1, 1898, but the title of no cause is given —only certain cases with certain numbers, including, among others, Mo. 433. The clerk, in the same record, certifies “ that term Mo. 433, as appears in the foregoing instrument (referring to said order of dismissal as it appears from his minute book), was the term number of chancery case Gen. No. 137, 964, entitled C. S. Mather et al. v. G.S. Hoppe et al., on June 1, 1898, as appears from the records in my office.
It is contended that there is nothing in the record, nor in the additional record, which in any way identifies this case, viz., C. S. Mather et al. v. C. L. Hopper et al., Gen. No. 137, 964," with this order of dismissal. The record is otherwise. On the fifth page of the original record appears the motion of the solicitor for the defendants to set aside the order of July 11, 1898, and it is entitled in the cause as above given, and besides the general number the title includes “ Term No. 433.” Also in the additional record the caption of the certificate of evidence as to what was considered by the court upon the motion to vacate the order of dismissal, is entitled in the same way. It is contended that the chancellor had no right, after the lapse of the term, to make any certificate as to what he considered upon the hearing of said motion, but if this contention is correct, still we are of opinion that the general order above recited, as well as the clerk’s minute book, the report of the master in chancery and the receiver’s report, all of which are included in said certificate, were properly a part of the record without any certificate of the chancellor. They are all certified by the clerk, and are proper to be considered here as an additional record, independent of the judge’s certificate. Flaherty v. McCormick, 123 Ill. 525-32; Ames v. Stockhoff, 73 Ill. App. 427, and cases cited,
We are of opinion that the term number 433, as it appears in the clerk’s minute book, and the title of the cause as it appears in the motion of plaintiffs in error, above referred to, sufficiently identify the cause dismissed by Judge Burke on his general call on the first day of June, 1898, with the order of dismissal as it appears in the original record in this case.
It remains to be considered whether the Circuit Court had power to make the general order it did, and thereby reserve the right to reinstate any case after the lapse of the term and within sixty days from the date of the dismissal. Had the court in its order of June 1, 1898, reserved the right, as in the general order, to reinstate the case, there can be no question but that the court would have had jurisdiction at any time within sixty days from the order of dis-1 missal to set it aside. In fact, counsel for plaintiff in error concede that the court had such power.
Courts may make reasonable rules or orders for the transaction of their business, provided they are not in violation of the law of the land, and when made a matter of record they are to be governed thereby. Hurd’s Stat., Ch. 37, Sec. 34; People v. Blades, 104 Ill. 591; Treishel v. McGill, 28 Ill. App. 68; Lancaster v. Ry. Co., 132 Ill. 492; Beveridge v. Hewitt, 8 Ill. App. 467-73; R. R. Co. v. Haskins, 115 Ill. 300-10.
In the Treishel case, supra, the court, in construing the statute above referred to with reference to rules of court, say :
“ When such rules are entered of record in such courts, the same become the law of procedure therein, in matters to which the same relate, until rescinded or modified and entered of record in such court.”
In the Lancaster case, supra, the court, in speaking of a similar statute with reference to the power of the Supreme Court, say:
“ While the court may at any time modify or even rescind its rules, yet until it does so, it should administer them according to their terms, and it can have no discretion to apply them or not, according to its convenience, unless such discretion is reserved in the rules themselves.”
This general order applying to all chancery cases in the Circuit Court, amounts to a rule of court with regard thereto, and reserving, as it does, the power to reinstate the” case, gave the court jurisdiction to enter the order of July 11, 1898. There is no claim that full notice was not given of the general order.
The original record in this case is made up pursuant to a prgecipe, which only calls for the process and a complete record from and after December 30,1896. From the record so made it appears, among other things, that the chancellor considered the motion of defendants in error to dismiss the cause for want of jurisdiction, that he considered the report of the master in chancery and the testimony taken in the cause, and found that the court had jurisdiction. What testimony was taken does not appear from the record, in the absence of which, the finding of facts being sufficient to justify the order, it must be presumed that the court had jurisdiction to and was justified by the evidence heard, in reinstating the case, as was done, and proceed with the hearing. Spraker v. Ennis, 78 Ill. App. 446; Callies v. Callies, 91 Ill. App. 305, and cases cited.
There is no claim but counsel for plaintiff in error, but that the final decree was proper, if the court had jurisdiction to render it—only that it is void for want of jurisdiction. The case being properly reinstated, the court had jurisdiction to proceed to a final hearing.
A preliminary motion was made and reserved to the hearing, to strike from the files the said additional record. The motion is overruled. While part of the additional record is not proper and might well have been stricken out, the other parts especially hereinabove referred to being properly a part of the record, without any certificate of the chancellor, we think defendants in error had the right, on leave given, to file it in this court. The motion being as to the whole of the additional record, could not be maintained because a part only of the additional record was improper.
Being of opinion that there is no error in the record in the respects claimed, the order of the Circuit Court reinstating the cause and the final decree therein are affirmed.
