159 N.E. 263 | Ill. | 1927
Lead Opinion
Defendants in error, the city of Chicago, its three civil service commissioners, city treasurer, city comptroller, commissioner of public works and superintendent of streets, filed their petition in the Appellate Court for the First District against plaintiff in error, Joseph B. David, as judge of the superior court of Cook county, for a writ ofmandamus, praying that he be commanded to expunge from the record of the superior court of Cook county a portion of an order entered by him for an appeal in the case of People exrel. Philip Q. Rohm vs. Nicholas R. Finn et al., being the same parties defendant in that case who are defendants in error in this case. A demurrer to the petition was overruled and the writ was awarded.
On January 7, 1925, Philip Q. Rohm filed a petition in the superior court of Cook county for a writ of mandamus against the city of Chicago and its officials to compel them to recognize him as the lawful incumbent of the office of *232 first assistant superintendent of streets of the city. The petition alleged that Rohm, after proper civil service examination, had been appointed to the office and had performed the duties thereof for more than seven years; that the city council had passed an ordinance purporting to abolish the office and creating in lieu thereof the office of deputy superintendent of streets with essentially the same duties, which office of deputy superintendent of streets was in fact and in law the same office as that of first assistant superintendent of streets; that the effect of the new ordinance was merely to change the name of the office; that the civil service commissioners, purporting to regard said position as a new office, had taken steps to appoint some other person than Rohm thereto and thereby discharge Rohm, in contravention of the letter and spirit of the Civil Service law and in violation of his rights as a civil service employee. A demurrer to the petition was overruled and the city and its officials filed an answer, in which they admitted many of the essential facts stated in the petition but denied that the two offices were one and the same in law and denied that they had been actuated by politics or other improper motives. The case was heard by Judge David on the petition and answer, and an order was entered which found that all of the material allegations of the petition were admitted by the answer; that the two offices were in fact and in law the same office; that Rohm was the lawful incumbent thereof and was entitled to a writ ofmandamus against the city and its officials to compel them to recognize him as such, and a writ of mandamus was ordered to issue accordingly. The city and its officials prayed an appeal to the Appellate Court for the First District, which appeal was allowed. The order for the appeal contained the following: "Provided, however, the petitioner, pending the determination of such appeal, is to hold the position of first assistant superintendent of streets of the city of Chicago until the further order of the said Appellate Court." The *233 appeal was perfected, whereupon the city and its officials filed the petition in this case in the Appellate Court against plaintiff in error, as judge of the superior court of Cook county, for a writ of mandamus to compel him to expunge from the record the proviso last above quoted with reference to the appeal. Plaintiff in error demurred to the petition. Defendants in error then made a motion that the demurrer be overruled and that a rule of respondeat ouster be entered. As before stated, the Appellate Court overruled the demurrer, denied the motion for a rule of respondeat ouster, and ordered a writ ofmandamus to issue commanding plaintiff in error to expunge the provision from the record with reference to the appeal. The judgment assessed the costs against plaintiff in error, and a writ of error has been prosecuted from this court to review the judgment.
The question for determination is whether the Appellate Court properly overruled the demurrer and properly ordered the writ to issue. The right of appeal did not exist at common law but is of statutory creation. An appeal can be taken only where the statute confers the right, and it must be prosecuted in the manner and at the time provided by the statute. (DrainageComrs. v. Harms,
An appeal is not pending until the court of review has acquired jurisdiction of the case for some purpose, either by the filing of an appeal bond in the trial court or by the *234
filing of the record, or some part thereof, in the court of review. (Holmes v. City of Chicago,
At the time the original mandamus proceedings were instituted, and at the time the judgment was entered therein by the trial court, Rohm was in possession of the office, which he sought to retain. The judgment in the original mandamus proceeding was that Rohm was the lawful incumbent of the position, and a writ of mandamus was ordered to issue to compel the city and its officials to recognize him as such. When defendants in error perfected an appeal from that judgment the effect of the appeal was to maintain the status quo pending the appeal. To maintain the status quo required that Rohm continue in office pending the appeal. It was unnecessary for the order of appeal to provide, as a condition precedent thereto, that Rohm should continue to hold the position until the further order of the Appellate Court. The law fixed his status regardless of the condition imposed on the appeal, and the condition imposed did not change the rule of law, therefore defendants in error were not injured by the condition imposed on the appeal.
Section 11 of the Appellate Court act provides that Appellate Courts may issue writs of mandamus to cause any act to be done which may be necessary to enforce the due administration of justice in all matters which could or might by appeal or writ of error, or in any other lawful manner, be brought within their respective jurisdictions. In Hooper v. Rooney,
The judgment will be reversed and the cause remanded, with directions to sustain the demurrer and dismiss the petition.
Addendum
The foregoing opinion reported by Mr. Commissioner Partlow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded, with directions.