155 Ill. 192 | Ill. | 1895
delivered the opinion of the court:
When this case was before us upon the former petition the writ was denied, for the reason, as will be seen by the opinion in that case, (146 Ill. 532,) that “no proof whatever was made as to what the evidence or proceedings at the trial were, nor was any offer made to supply such proof;” that although the relator’s attorney produced and exhibited to the judge a document which “he said was a transcript of the stenographer’s notes taken at the trial, but so far as the stipulation shows, he neither produced nor offered to produce any evidence that the document was a correct transcript of the testimony and proceedings at the trial. * * * The unauthenticated transcript of the stenographer’s notes was not evidence upon which the judge could act, nor was the unsworn statement of the relator’s attorney that the transcript was correct. * * * The want of competent evidence of the proceedings at the trial was clearly a justification of his refusal to decide the motion for a new trial on its merits,” etc.
An examination of the stipulation of facts in the present case will show that the reasons given by this court for denying the writ at the former hearing do not now obtain, but that the relator’s attorney stated to the court that “he had a true, complete, full and correct transcript of all the testimony, evidence and proceedings of said trial, and offered to prove by the stenographer who took the case that such transcript was in every respect true, full, correct and complete, and offered to present said transcript to the court for examination,” etc. It is true that no official or authenticated transcript or record of the evidence was produced, nor did the parties or their counsel stipulate that the transcript which relator offered to verify by the testimony of the stenographer was a correct and complete transcript of all the evidence. But this fact was not denied, nor is it intimated that the transcript which relator offered to prove was not, in all respects, true and complete. Indeed, it is stipulated that actual presentation of the evidence was waived by Judge McConnell, and that “argument was heard with the understanding that the relator had tendered a true, full, correct and complete transcript of all the evidence, testimony and proceedings taken or had before the trial court, without a certificate of its authenticity.” It is clear that relator did all in his power, without the further consent or assistance of his adversary, to reproduce to the court the evidence and transactions taken and occurring at the trial, and the refusal of the respondent to hear and determine the motion for a new trial upon its merits was predicated upon the grounds that he had not heard the witnesses testify and seen their demeanor on the stand, and that no official or agreed transcript was produced. The question, therefore, squarely presented is, whether, under the facts of this case, the respondent was legally bound to hear and determine the motion for a new trial upon its merits.
It is manifest that where the judge before whom the cause was tried, dies, after verdict and pending or before the determination of a motion for a new trial, and before a bill of exceptions is signed, there can be, under our practice, no authenticated copy of the proceedings on the trial. Matters mot pertaining to the records proper can only be authenticated and made part of the record by a bill of exceptions, and it therefore follows, necessarily, that if anothér judge can act only upon an authenticated record, one of two things must occur: either the court must award a new trial as a matter of course, or the party demanding a new trial be remediless. Without extended discussion of the question, and citation of authorities which may be found, tending to show that the former is the proper course, we are of opinion that under the modern practice in our courts the better rule, and the one sustained by perhaps the weight of more recent authority, is, that the succeeding judge, presiding in the same court, has power to decide a motion for a new trial, and to grant or overrule the same, and enter such judgment or order as shall to justice appertain. (Life and Fire Ins. Co. v. Wilson, 8 Pet. 291; State v. Gasline, (Neb.) 47 N. W. Rep. 852; Ketcham v. Hill, 42 Ind. 64; Cowell v. Altschul, 40 Ark. 173 ; Tombstone v. Way, (Ariz.) 25 Pac. Rep. 794; Field v. Thornton, Kelly, (1 Ga.) 306; McKendree v. Sikes, 40 Ga. 180 ; Watkins v. Paine, 57 id. 30 ; Ott v. McHenry, 2 W. Va. 73 ; Edwards v. James, 3 Texas, 52; 16 Am. & Eng. Ency. of Law, 618, and notes.) The court is required to pass upon and determine the motion for a new trial. The determination is a judicial one, to be made by the court, and not by the particular judge who may, at a particular time, have presided therein.
The objection that the particular judge who is asked to pass upon the motion did not see the witnesses or hear them testify, and therefore did not have the means of determining the weight or credit to be given to their testimony, would obtain equally if there was an authenticated record presented to him. If the judge who presided at the trial had pursued a course unusual in practice, and signed a bill of exceptions before disposing of the motion for new trial, thereby making the same a part of the record, it would afford no greater facility, when presented to another judge, for determining the weight and credit to be given to the testimony of the witnesses than would a transcript of the proceedings at the trial proved in any other way. The purpose of all investigation in the courts is, to do justice promptly and without unnecessary delay, and the parties litigant and the public are alike interested in speedy and correct determination of causes. In modern practice full stenographic report is usually made, as was done in this case, and the correctness of the transcript presented to the court of the occurrences at the trial is easily and readily ascertainable.
We have repeatedly held, and the citation of cases is unnecessary, that in settling a bill of exceptions by the trial judge he may resort to every legitimate means of ascertaining the correctness of the bill he is called upon to authenticate. He may not only have recourse to the stenographic report, but may send for the witnesses, and take such other steps and measures as will legitimately and properly advise him of the truth, and of the correctness of the bill of exceptions which he signs. The due and proper administration of justice requires that this should be done, rather than to put the parties and the public to the unnecessary expense of a re-trial of the cause. Every facility possessed by the trial judge, except that of personal recollection, is within the power of his successor in office presiding in his place and stead, and no reason can be perceived or exist why the judge to whom the application is made may not in like manner advise himself, and by like means arrive at a correct determination, of what a bill of exceptions should contain. It may well be that the one party or the other may lose the benefit of the superior credit, or the want of credit, of particular witnesses for or against him, by reason of the inability of the court, in passing upon the motion for a new trial, to properly weigh the evidence, in view of their demeanor and appearance upon the witness stand. The intelligent and enlightened judge will know and appreciate this condition, and, as is done in appellate jurisdictions, where the same difficulty exists, will give due and proper weight to the previous findings in the cause.
The views here expressed will find more or less direct support in the following cases: McKendree v. Sikes, 40 Ga. 190; Durkee v. Marshall, 14 Vt. 559 ; Dakin v. Pomeroy, 9 Gill, 1; Wood v. People, 59 N. Y. 117; Atlas v. Johnson, 22 Mich. 78; McKean v. Boord Co. 60 Ind. 280; People v. Williams, 91 Ill. 87; Railroad Co. v. Marseilles, 107 id. 313. Alley v. McCabe, 147 Ill. 410, in principle also sustains this proposition.
The application to the court having been made in proper form, and the proof tending to show that all that could have enlightened the mind of the court upon the question was presented, it became and was the duty of the court, in our opinion, to hear and determine the motion. The application, in the first instance, should, by the admission of the parties or by proper proofs, purport to be a perfect and complete transcript of the evidente, the orders of court, and all other matters occurring at the trial affecting the merits of the controversy. If differences arise, the court should, by the means within its power, ascertain the truth and determine the motion accordingly.
There is, however, in this case, an insurmountable obstacle to the issuance of the writ. As held in Vahle v. Brackenseik, 145 Ill. 231, this court is bound to take judicial notice of who are judges of the various courts of record within this State, and we must take judicial notice that by resignation, pending this application, the respondent, the Hon. Samuel P. McConnell, ceased to be circuit judge in and for the county of Cook. The writ would necessarily proceed against him in his official capacity, requiring him to discharge a judicial function which he is now incapacitated to perform, and for the last named reason, only, the writ will be denied.
Mandamus denied.
