53 Ill. App. 17 | Ill. App. Ct. | 1894
delivered the opinion of the Court.
We are of opinion the City Court of Alton had no power to make and enter an order of adoption, as is alleged in said petition was made by Judge Baker on September 28, 1869. Under the provisions of Sec. 1, Art. 5, of the State Constitution of 1848, an act was passed by the legislature in 1853 (Sess. Laws, 1853, p. 147) establishing the recorder’s court of Chicago, and conferring upon it concurrent jurisdiction within said city, with the Circuit Court, of civil cases, where the amount involved did not exceed $100, and in all criminal cases, except treason and murder, and conferring like powers and imposing like duties upon the judge and clerk as were conferred and imposed upon the judge and clerk of the Circuit Court, so far as the same were not limited by the act. By an act approved February 6, 1855 (Sess. Laws 1855, p. 155), the Court of Common Pleas of Cairo was established, conferring the same powers and jurisdiction upon that court within the city of Cairo and township 17, R. 1, W. of the 3d P. M., in civil and criminal cases, except treason and murder, and imposing the same duties upon the .judge and clerk of said court, as provided in the act establishing the recorder’s court of Chicago, except that jurisdiction was given in civil cases where the amount involved did not exceed $50,000. By the act, approved February 10, 1857 (Sess. Laws 1857, p. 29), it is provided that every act establishing an inferior court of civil and criminal jurisdiction in any city of this State, should be so construed as to confer on such court a uniform organization and jurisdiction with the recorder’s court of Chicago and the Court of Common Pleas of Cairo.
By the act approved February 9,1859 (Sess. Laws, 1859, p. 71), the City Court of Alton was established. Sec. 1 granted to that court concurrent jurisdiction, within the city of Alton, with the Circuit Court of Madison County, in all civil and criminal cases, except treason and murder. Section 2 provides that the judge of that court shall possess the same powers as are vested in the judges of the Circuit Court, except as limited in the act. And section 25 declares that the act approved February 10,1857, shall be made apart of this act, as fully as if the same had been incorporated therein. It thus appears the City Court of Alton was created by a statute, and its territorial jurisdiction in all cases, was, by statutory provisions, limited to the city of Alton. And the act of February 10,1857, conferring upon said court uniform jurisdiction with the courts named therein, did not extend that jurisdiction to territory outside of the city. It is not averred in appellee’s petition, that Jacob Young, or the child it is alleged he adopted, or the father of the child, resided in the city of Alton at the time it is alleged the petition for adoption was filed and the order is alleged to have been made, and it is conceded by counsel for appellee, all of said parties resided outside of said city at that time. If the alleged proceeding for adoption is a “ civil case,” within the meaning of the statutes cited, it could not be entertained by a city court of a city in which none of the parties to be affected by such proceeding resided.
But counsel for appellee say, the petitioner, Y oung, and the father of the child, appeared before the city court at the September term, 1869, and the court thereby acquired jurisdiction of the persons of the only parties interested. If this point is conceded, the jurisdiction of the city court of the subject-matter, remains as a question yet to be determined. The act of 1867, in force when this proceeding and order of adoption is alleged to have occurred, was the first act providing for the adoption of children in this State. It was passed after the City Court of Alton had been established, and this is one of its provisions : “Any person desirous of adopting a child so as to render it capable of inheriting his or her estate, must present a petition to the Circuit or County Court of his or her residence.” The omission of city courts and prescribing Circuit and County Courts only as the courts, to one of which, such petition must be presented, evidences clearly and conclusively the intention of the legislature to confer exclusive, original jurisdiction, in a proceeding for adoption, upon the courts named in the act. If the City Court of Alton had no power to entertain the petition of Jacob Young, and make the order of adoption, it would be a nugatory and unlawful act to grant the prayer of appellee’s petition, sustain her motion and direct the entry nunc pro tnmo of a void order. Other reasons for reversal are mentioned, not absolutely essential to be discussed and determined by us, if we are right in the opinion already expressed. It is said the laches of appellee,- in applying for the relief prayed for, is such that her petition and motion ought to have been denied. More than twenty-three years had elapsed after the order is alleged to have been entered, and it was more than seventeen years after the death of said Jacob Young, when appellee’s motion was presented, and no reason is shown justifying such delay.
We think after such lapse of time, when no excuse or reason for her dilatory action appears, appellee's motion ought not to have been entertained. Furthermore, it is not alleged in appellee’s petition, that any docket entry, minute, or memorandum was made by the judge, but it is alleged the order was not entered on the records of the court but was delivered, together with the petition, to Jacob Young through mistake or misapprehension of the clerk, and they were afterward lost.
It thus appears by the appellee’s petition itself, that parol evidence would necessarily be required to prove the presentation of said petition, the making of said order, the sub-. stance of each, the delivery of the same to Young, and the fact of their loss, and we find by the report of proof filed by the special master, and by the final order and decree in this record, that the court did hear and consider parol evidence introduced to establish these facts, and based his findings and decree on that evidence. This was in direct conflict with the law as held by the Appellate and Supreme Court of this State, and a decree of this character supported only by such evidence, ought not to be affirmed. During the term at which a suit is pending, the court has control of the record and can cause proper amendments to be made without notice. And at a term subsequent to that at which a final judgment or decree in a case is entered, amendments in matters of form, or to correct clerical errors, can be made on the motion of one party, after due notice given to the opposite party. In this latter class of cases, amendments can not be allowed or judgment or decree nunc fro tunc ordered to be entered, on motion supported by parol proof only, but there must appear by the judge’s minutes, entry or memorandum elsewhere in the record, some evidence of record upon which to base the order. Coughran v. Gutcheus, 18 Ill. 390; Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Dougherty v. People, 118 Ill. 164; Frew v. Danforth, 126 Ill. 242; Troutman v. Hills, 5 App. Ct. Rep. 396; Millard v. Cooper, Ibid. 50; In re Annie Barnes, 27 Ibid. 151; Homer v. Homer, 37 Ibid. 199; Cook v. Wood, 24 Ill. 295; Smith v. Wilson, 26 Ill. 186; McKindly v. Buck, 43 Ill. 488; State Savings Ins. Co. v. Nelson, 49 Ill. 171; Ins. Co. v. Chamber of Commerce, 69 Ill. 22, and Coursen v. Hixon, 78 Ill. 339, cited in appellant’s brief, support our view on this point.
We have been referred by counsel for appellee to but one Illinois case which is claimed to be adverse, viz., Ives v. Hulce, 17 Brad. 30, and in that case it appears there was matter of record to amend by. The decisions of courts of last resort in other States, cited on behalf of appellee, in so far as they are in conflict with the law as held in this State upon the same question, can not be followed and adopted by this court. Appellee’s counsel contend the authorities cited on behalf of appellant are not in point, because it is not the purpose of the motion to amend, alter or change an existing record. But (quoting the language in the brief), “ we establish by the best evidence obtainable, the actual contents of the original and missing order, and ask that it be made a matter of record.” Counsel overlook the fact it was not only sought to prove by parol evidence the “ actual contents ” of the order, but also by such evidence to prove the judicial act of a court, that must be made a matter of record. If this contention is sustained we must hold that parol evidence is admissible to prove facts justifying a court, on motion, to make and enter an entire record, but is not admissible in support of a motion to make a part of a record only, by amending or adding to the original record.
The City Court of Alton was a court of record, and the law required a record of its proceedings to be kept; that record can not be contradicted or supplemented by parol. People ex rel. Madison County, 125 Ill. 334.
We are satisfied that the admission of parol evidence in support of appellee’s motion was contrary to law. That the motion, showing as it did on its face, such evidence must be resorted to in order to sustain the motion, ought to have been denied for that reason. That the laches of appellee before referred to would bar her of the remedy sought by her petition and motion. That the City Court of Alton had not the power to make and enter an order of adoption, and such order, if it was made and entered as alleged, was void. Appellee’s counsel call our attention to the fact that the judge who tried the cause, signed the certificate after the expiration of his official term, and that Judge Hope, his successor, signed the bill of exceptions or certificate; hence, there is no properly authenticated bill of exceptions, or certificate of evidence in the record. We do not deem it necessary to pass on this question. The petition itself, the decree and the special master’s report of proof, are matters of record, and we find there sufficient grounds to apply the rules of law we have referred to, and reach the conclusion we have announced.
The order and decree of the court below is reversed, with directions to that court to enter an order denying the motion of appellee and dismissing her petition, with all costs to be taxed against her.
