29 Ill. 535 | Ill. | 1863
A very important question is presented by the first error assigned. Great interests are involved in its decision, and it has received from us the most careful consideration.
The proposition is, that striking a cause in partition from the docket, after a final decree has been entered, and a sale of the lands made by the order of the court, removes it entirely from the jurisdiction of the court. Should the removal from the docket have this effect ? From analogy, in criminal cases, it should not have such effect. In those cases, a practice has long obtained in this State, now near half a century, after ineffectual attempts to arrest a defendant in an indictment, to remove, on motion of the State’s attorney, the cause from the docket, with leave to reinstate it on his own suggestion, at any future time. It is all one motion; to remove, subject to be reinstated, thereby excluding the conclusion that the case is at an end, but implying that it is still subject to the action of the court. It may be urged, that the order in this case reserves no right to reinstate; that it is, in terms, so peremptory as to amount to a discontinuance, leaving a party interested, to conclude, from an inspection of the record, that the cause was out of court. This may be so, he may so conclude, yet the jurisdiction of the court may remain. When this cause was stricken from the docket, it had proceeded to a decree for a sale of the lands, and a commissioner was appointed to make the sale. Thus the case stood, the only remaining act to be done, being the production of the report of the sale by the commissioner. At this time, persons, other than the parties to the suit, had become interested by the purchase of the lands. To preserve their interests, what should forbid the court, on their motion, or on that of the original petitioners, or any interested party, to re-docket the cause for the purpose of receiving his report, on proper notice being given, or for any other necessary purpose ? The suit had not been formally dismissed, discontinued, or abandoned in terms. Great latitude must be allowed the courts in such cases, so that the ends of justice may be promoted. We may say, a discretionary power was vested in the court, to allow or not, a motion to reinstate. A court may abuse a discretionary power, or exercise it illegally. We are not inclined to think, this is a case wherein a discretion has been exercised, in a manner not warranted by law. On a motion . to reinstate a cause which had been stricken from the docket, the time when it was done, may be an element to take into consideration. Should but a term or two have intervened, between the motion to strike from the docket, and the motion to reinstate, even in such case, notice of the motion should be given, either actual or constructive. This is indispensable. Where, as in this case, a peremptory order had been made of record, with no reservation, and ten years have elapsed, during the whole of which time the cause lay dormant, if not dead, a supplemental petition might be the better course, setting forth all the proceedings up to the time of filing it, and the parties in interest called upon to appear and make their objections to the final report, if that be the only act remaining to be done, or otherwise, as the state of the case may have been, when it was stricken from the docket, and some reason should be assigned, perhaps, why it was stricken from the docket. Of this petition due notice should be given in the mode prescribed by law, and the court, in the exercise of its discretion, if satisfied that the cause had not been stricken from the docket for an illegitimate purpose, would reinstate it. We are of opinion, that striking the cause from the docket, did not deprive the court of jurisdiction over it, to reinstate it, but that it could be reinstated, on motion, and notice, or by supplemental petition and notice. Due notice of this motion to reinstate the cause was given, and lapse of time should not bar the exercise of this discretionary power, or prevent the court from confirming the sale. Harvey, Guardian of the Heirs of Sweet, 16 Ill. 131.
• We will now consider, briefly, the action of the court upon the report of the commissioner. Approving the report of sale, involved the approval of the report of the three commissioners, appointed to rpake partition of these lands, and the order of the court thereupon, directing a sale. This court decided in the same case, Tibbs et al. v. Allen, 27 Ill. 128, that the Circuit Court was not justified in ordering a sale on the report of those commissioners—that it was not only not in accordance with the statute, but in the face of the statute. We cannot take this back, as we remain of the opinion then expressed. It was an error then to confirm the sale, based, as it was, upon proceedings deemed illegal and in contravention of the statute.
It may be further remarked, that no proof whatever was furnished the court by the commissioner making the sale, that he had given any public notice of the sale. His mere statement sufficed. This was erroneous. Some proof, other than his assertion, should have been required; at least a copy of the notice, with the affidavit of some credible person that he saw it posted in some public place, or, if printed in a newspaper, the usual certificate of the printer, should have been required.
The order of the Circuit Court confirming the sale of these lands is reversed.
Judgment reversed.
