239 Ill. 320 | Ill. | 1909
announced the opinion of the court:
I will state at this time, for the information of counsel interested in this matter, that it has been the uniform practice of this court for many years, extending back long prior to the Thistlewood case, 103 Ill. 139, that the statute in regard to mandamus has no application to this court, and it was so held in that case. The uniform practice of this court has been, that.where parties desire leave to file a petition for a writ of mandamus they should malee a motion in court, accompanied by a copy of their petition,—and that is purely an ex parte proceeding. The court will then examine the motion and examine the petition, and if the court is of the opinion that there is a showing of such a character that the petition should be allowed to be filed, an order will be entered permitting the petition to be filed and summons will then be ordered to be served upon the other party. If it is a matter of pressing importance the court may make the summons returnable within five days, returnable at the term, if public interests are involved. If, however, no public interests are involved it is usual to make the summons returnable the first day of the next term. There is no practice and there is no law which authorizes the clerk to file a petition for mandamus without leave of court or to issue a summons, so that the filing of this petition and the issuing of this summons is without authority of law, and if you desire to bring this matter before the court you should do it by making a motion for leave to file a petition and accompany it by the petition.
I understand that you deem this matter of great pressing importance and that speedy action should be had. That may be true; but the filing of this petition and issuing of this summons has no force or effect whatever, up to the present time. If we permit petitions of this kind to be filed in vacation and summons to issue, anybody could come in and file a petition and get a summons and bring the people here without any foundation for a suit of that kind at all. The uniform practice is, that before the petition is filed leave must be granted. Applications have been made heretofore,—in one instance, at least, to one chief justice,—for leave to file in vacation and for a summons, and it was denied.
If you desire to do anything in this .matter the case will have to take its usual course,—that is, by making your motion accompanied by your petition. That motion will be disposed of, and if the petition is allowed to be filed the summons will be ordered. You may prepare a written motion to that effect, and in support of that you can file such suggestions as you may deem necessary to sustain your contention. Until there is an order made, however, to allow you to file the petition, it is purely ex parte and the other side are not entitled to be heard. The respondents are not in court mitil they are served by summons or until they voluntarily appear and enter their appearance, and summons cannot issue or appearance be filed until after leave has been granted to file the petition. ^
,, .. . , Motion dented.
