57 Ill. App. 382 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
The judgment for the appellee was entered March 17, 1894, and the appellant then prayed and was allowed, an appeal, “ its bill of exceptions to be filed within sixty days of this date.”
On the loth day of May, the judge who presided at the trial of this cause was-presiding in the Criminal Court of Cook County, in the Criminal Court building, which, as we judicially know, is upon the other side of the river, distant nearly half a mile from the court house of the county of Cook, in which the Superior Court is held. Mo contingency upon which the Superior Court might be held elsewhere, under Secs. 4 and 5 of “ an act to revise the law in relation to Circuit Courts and the Superior Court of Cook County,” approved February 16, 1874, had happened.
On that 15th day of May, the counsel of the appellant presented to that judge, at the Criminal Court, a paper as follows:
“ State of Illinois, 1 gg Countf of Cook, (
In the Superior Court of Cook County, to the March term, A. I). 1894.
Sophia J. Shattuck vs. U. S. Life Ins. Co.
Leave to extend time for filing bill of exceptions in the above entitled cause, extended from. sixty days as granted, to eighty days, on motion of the defendant’s attorney.”
Upon which paper that judge made this notation :
“ Enter May 15, ’94. J. B. P.”
these letters being the initials of his name.
May 17th, that paper was presented to and filed by the clerk of the Superior Court.
May 28th, an order entitled in the cause, was entered on the record of the Superior Court, extending the time for filing the bill of exceptions to June 15th. On the 13th day of June, the judge, under such circumstances as may fairly be held to amount to an acquiesence by the counsel of the appellee in his act, signed the bill.
Here the appellee has moved to strike it out. Much of the argument here is as to the power of the judge, when presiding in the Criminal Court, and absent from the Superior Court, tó do any act that would be effectual as an act of the Superior Court.
In our view he had no such power. Extending the time originally limited for filing a bill of exceptions is a judicial act, which can only be performed by the judge in term time, when sitting as a court (Hake v. Strube, 121 Ill. 321), and before the time originally limited has expired. Hawes v. People, 129 Ill. 123.
The judge is not the court, carrying the judicial function around wherever he goes. Feltenstein v. Stein, 51 Ill. App. 426. It is not a personal characteristic, like the odor of sanctity. “ Courts are political agencies—mere legal entities—established under the constitution for governmental purposes, and in contemplation of law have a separate existence from the judges who preside over them; otherwise, when the judge of a court dies, the court itself would cease. A judge, therefore, has no judicial power outside of the court in which he officiates. He is the tangible, living oracle of the court. He speaks and acts for it, and in law is its only accredited agent. When discharging the judicial function of his office, he is the court in concrete form, and in this sense he is often called the court, but strictly and technically speaking, the judge and the court are wholly distinct.” Bowman v. Venice & Carondelet Ry., 102 Ill. 459.
With some exceptions specially provided for, the law requires that the court shall be held in the court house. Sec. 3 of the act cited.
The judge goes where he will, and the court over which he presides ceases action, to be resumed only when he or another, by law qualified, again presides. Wight v. Wallbaum, 39 Ill. 554; Meredith v. People, 84 Ill. 479.
The acquiescence of the counsel of the appellee—before referred to—is not sufficient to validate the bill. Hake v. Strubel, 121 Ill. 321.
All the matters relied upon by the appellant for a reversal of the judgment are such as can appear only by a bill of exceptions; the motion to strike it out is sustained, and the judgment affirmed.
All that is so well said by Mr. Justice Gary as to the distinction between the judge and the court I acquiesce in. I concur in the order striking the bill of exceptions from the files, because it appears that the judge of the Superior Court not only made the order extending the time for the filing of a bill of exceptions at a time and place when and where he was not holding a branch of the Superior Court, but that such order was not communicated to and did not reach or appear upon any of the files or memoranda of the clerk of the Superior Court until after the time for the filing of such bill had expired; and so far as the record here presented shows such order has never been spread upon the records of the Superior Court.
