298 Ill. 380 | Ill. | 1921
delivered the opinion of the court:
Mary Callahan and her three minor children recovered a judgment for $5000 on March 14, 1913, against Frank Hallinan in a suit brought under section 9 of the Dram-shop act for injury to their means of support. They subsequently filed a bill in chancery against John J. Healy under section 10 of the Dram-shop act to charge the judgment as a lien upon the premises in which Hallinan conducted his saloon. At the hearing of the chancery cause the defendant offered no evidence but both parties rested at the conclusion' of the evidence introduced by the complainants. The court sustained motions made by defendant to strike out the. complainants’ evidence and dismissed their bill for want of equity. The complainants appealed to the Appellate Court for the First District, which reversed the decree and remanded the cause to the circuit court- “for such other and further proceedings as to law and justice appertain, in conformity with the views expressed in the opinion of this court this day filed herein.” The opinion stated: “We are of the opinion that the original declaration stated a good cause of action under section 9 of the Dram-shop act; that on the evidence submitted complainants were entitled to a lien, and that the court erred in striking out complainants’ evidence.” After the cause was re-instated in the circuit court the complainants made a motion for a final decree in accordance with the prayer of the bill. The defendant asked leave to amend his answer, and Judge McGoorty, to whom the cause had been assigned, denied the complainants’ motion and granted leave to the defendant to amend his answer. Thereupon the complainants applied to this court for leave to file a petition for a mandamus requiring Judge McGoorty to enter a final decree declaring the judgment to be a lien on the premises as prayed for in the bill. The leave was granted, the respondent answered the petition, and the cause has been submitted for decision on demurrer to the answer.
Where a cause is remanded by. an appellate court with directions to the circuit court to enter a decree, the court has no discretion but its duty is to enter the decree in accordance with the direction. The contention of the respondent’s counsel is, that the remandment, with directions for further proceedings in conformity with the opinion of the court, was not a remandment with specific directions but left to the discretion of the judge to determine what proceedings would be in conformity with the opinion of the court. The rule is well established that when the mandate of an appellate court directs the entry of a decree in accordance with the views expressed in the opinion, the court must look to the opinion to ascertain the views expressed but it must conform its action to directions given in the mandate and must enter a decree in accordance with the views expressed in the opinion. (Fisher v. Burks, 285 Ill. 290; Prentice v. Crane, 240 id. 250.) The duty to do so may be enforced by mandamus. (People v. Scanlan, 294 Ill. 64.) In the case now under consideration the court did not in so many words direct the entry of a decree but remanded the cause for further proceedings in conformity with the opinion filed. In such a case the trial court is bound to examine the opinion and determine from the nature of the case what further proceedings may conform to the opinion. If the merits of the case have not been determined on the appeal an amendment of the pleading and the introduction of additional evidence may be permitted, but if the case has been considered on its merits and they have been determined, the only proceeding in conformity with the opinion is the entry of a decree in accordance with it. (Prentice v. Crane, supra.) The case in the Appellate Court presented the question of the sufficiency of the declaration' in the case against Hallinan under section 9 of the Dram-shop act as a basis for the lien, and the sufficiency of the evidence to establish the lien of the judgment upon the property of the defendant under section 10 of the Dram-shop act. Both these questions were decided in favor of the complainants, the court stating in its opinion that the declaration stated a good cause of action under section 9 and that on the evidence submitted the complainants were entitled to a lien. The decision of those questions determined the merits of the case. The views expressed in the opinion were that the law was with the complainants and that the facts established by the evidence entitled them to the lien for which they prayed. The cause having been submitted for decision and the. Appellate Court having found the issues of law and fact for the complainants, no other proceeding in conformity with the views expressed in the opinion was possible than a decree for complainants establishing the lien.
No evidence was introduced by the defendant on the hearing, and it is insisted that the action of the court .in sustaining the motion to strike the complainants’ evidence eliminated such evidence from consideration and that no decree could be entered in the absence of any evidence. The parties had both rested, the introduction of evidence was closed, all the evidence that either party chose to submit was before the court ánd the cause was submitted to the court for a final decision upon, the merits. Whether a mo-, tion was made to strike out the evidence or not, the court would not consider incompetent evidence over the objection of the party against whom it was offered. The motion to strike amounted to no more than an objection to the evidence, and the sustaining of such objection or the formal order striking the evidence from the record was simply a ruling of the court that the evidence was not competent and would not be considered in deciding the case. The Appellate Court determined that the evidence was competent and should be considered in deciding the case and upon a consideration of the evidence in the record decided the issue of fact in favor of the complainants. The Appellate Court was authorized by the statute to enter such judgment as the circuit court should have entered on the whole record, or in its discretion it might remand the cause generally without any direction or with such directions as it should deem proper. It chose the course of remanding the cause with directions to proceed in accordance with the views expressed in the opinion of the court, and the opinion of the court stated and determined the issues under the law and facts involved in the case which entitled the complainants to a lien on the property. The directions, therefore, amounted to a direction to enter a decree as prayed for in the bill.
After Judge McGoorty answered the petition he resigned his office, and at the February term, 1921, Judge Frederic R. DeYoung, who had been appointed his successor, was substituted as defendant. Leave was asked to amend the answer filed by Judge McGoorty and also for Judge DeYoung to answer. These motions were denied. It is argued that the writ of mandamus cannot issue against Judge DeYoung; that he was under no obligation to enter a decree until demand had been made on him to do so, and that no demand was ever made on him. It was also shown in support of the motion for leave to Judge DeYoung to answer, that the assignment of the case to Judge McGoorty has been set aside and the case has been assigned to another judge of the circuit court, not Judge DeYoung. The action sought to be compelled is the action of the circuit court of Cook county, which is composed of twenty judges, each one of whom is authorized to exercise all the powers of the circuit court. The action was brought against Judge McGoorty for the reason that the cause had been assigned to his docket. When he resigned the action did not abate, but, the duty being a continuing one resting upon public officers, its performance may be enforced against the officers generally, and their successors. Section 8 of the Mandamus act provides: “The death, resignation or removal from office, by lapse of time or otherwise, of any defendant, shall not have the effect to abate the suit, but his successor may be made a party thereto, and any peremptory writ may be directed against him.” In People v. Supervisor of Barnett Township, 100 Ill. 332, an alias peremptory writ of mandamus was awarded against a supervisor commanding him to execute certain bonds, for the execution of which a writ of mandamus had been awarded against his predecessor, who had not obeyed it. The court said the alias writ was but the repetition of the writ against the same party represented by another person. The same principle was announced in State Board of Equalization v. People, 191 Ill. 528. Obedience to the writ cannot be avoided or the proceeding suspended by the assignment of the case to another judge. The duty is the duty of the court, and when the proceeding is begun to compel the action of the court, the judgment which may be rendered will be binding on the court and all the judges of the court. The motion before. Judge McGoorty and the demand for the entry of the decree was a call upon the circuit court to obey the mandate of the Appellate Court and was effective upon every one of the judges' of that court, and the judgment which may be rendered will also be binding upon them.
Objection was made by the respondent that the judgment which was rendered on March 14, 1913, had become dormant, that no execution could be issued upon it, and that after the expiration of seven years the writ of mandamus would not issue to enforce it. It was not the object of the bill to enforce the general lien of the judgment provided by chapter 77 of the Revised Statutes. The lien sought to be enforced is the one authorized by section 10 of the Dram-shop act. The proper method of enforcing such lien is by bill in chancery, and section 47 of the Chancery act provides for the carrying into effect of decrees, when there has been no direction that the master in chancery or commissioner execute them, by execution or other final process, according to the nature of the case, directed to the sheriff or other officer of the proper county. The execution which the decree provides for is not an execution on the judgment from the court which rendered it, but an execution against the property for the enforcement of the lien of the judgment created by section 10 of the Dram-shop act, to be issued out of the court rendering the decree.
The writ of mandamus will be awarded. The terms of the judges of the circuit court of Cook county have expired since the cause was submitted, and the judgment will therefore be entered as of the date of submission. ‘ The writ will be directed against Judge DeYoung and the judges of the circuit court of Cook county, his successors in office, and may be served upon any of the persons acting as judge of the circuit court of Cook county at the time of service.
Writ awarded.
