168 Ill. 37 | Ill. | 1897
delivered the opinion of the court:
The exceptions to the report of the executrix filed prior to the fifth day of August, 1891, by relators and others, and heard on that day, were overruled, and the report of the executrix approved. That was an adjudication of all matters included in the exceptions, and is, in a collateral proceeding, final and conclusive as to those who filed them. They had their day in court, and have no right to again litigate the same matters in another proceeding. Their remedy was by appeal, to reverse. (Dickson v. Hitt, 98 Ill. 300.) They sought to prosecute an appeal, which was dismissed for insufficiency of bond. That did not authorize the institution of a new proceeding, in the absence of fraud. By the petition presented by the relators on the 17th day of September, 1895, they sought to re-litigate the identical matters adjudicated on the objections filed by them and others prior to August 5, 1891. The court refused leave to file that petition, and the petitioners, the relators here, prayed an appeal, which was refused. This petition for mandamus was filed to compel the judge to enter an order allowing an appeal. The writ of mandamus is to be awarded in the discretion of the court, and ought not to issue unless the relator has a clear legal right to have the thing sought by it done. In a doubtful case át should not be awarded, nor unless the right of the relator is clear and undeniable and the party sought to be coerced is bound to act. People ex rel. v. Hatch, 33 Ill. 9; People ex rel. v. McConnell, 146 id. 532.
The adjudication of August 5,1891, having determined the very questions sought to be raised by the petition presented September 17, 1895, there was no error in refusing leave to file that petition. There being no error, the court had the right to refuse an appeal. The entire question whether there was error in refusing leave to file the petition and refusing leave to appeal could be determined in this proceeding, and an appeal would, under the facts shown in this record, result in an affirmance. No clear and undeniable right exists in the relators to have a useless, unnecessary act done.
The judgment of the Appellate Court for the First District is affirmed.
Judgment affirmed.
