Boggiano v. Chicago Macaroni Manufacturing Co.

Appellate Court of Illinois

Boggiano v. Chicago Macaroni Manufacturing Co.

118 Ill. App. 225, 1905 Ill. App. LEXIS 200

CourtAppellate Court of Illinois

DecidedFebruary 10, 1905

DocketGen. No. 11,505

StatusPublished

Cited by2 cases

This text of 118 Ill. App. 225 (Boggiano v. Chicago Macaroni Manufacturing Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Boggiano v. Chicago Macaroni Manufacturing Co., 118 Ill. App. 225, 1905 Ill. App. LEXIS 200 (Ill. Ct. App. 1905).

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Opinion

Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a decree entered in the cause after it had been remanded by the Supreme Court.

It is contended that the Superior Court had not acquired jurisdiction when it. entered the decree now complained of, because the remanding order was filed one day, and the decree entered the day following upon only one day’s previous notice,instead of ten days as provided in the Practice Act (R. S., sec. 84, chap. 110). That provision of the statute is applicable by its terms “ when any cause or proceeding either at law or chancery is remanded by the Supreme Court or Appellate Court, as the case may be, for a new trial or hearing by the court in which such case was originally tried.” In such case upon the remanding order being filed, and not less than ten days’ notice thereof given to the adverse party, the cause will be reinstated. In the present case the cause was rerpanded to the Superior Court of Cook County, “ with directions to enter a decree awarding recovery in favor of the corporation against the defendant in error in the sum of seven hundred and fifty-four dollars and sixty-one cents.” In all other respects the decree was affirmed. It is evident that nothing remained for the Superior Court to do, except to obey the remanding order. It had no discretion to do otherwise. The cause was not therefore remanded “ for a new trial or hearing by the court.” Hence the provision of the statute above referred to is not by its terms applicable. That section of the Practice Act was amended as it now stands by an amendment in force July 1, 1885; prior to that amendment it required ten days’ notice whenever a cause was remanded. See Miller v. Glass, 14 Ill. App. 177-180. Such provision no longer exists. It appears that appellant was present in the Superior Courf by his counsel when July 18, 1903, the decree now complained of was entered, and had notice of the proceedings.

The decree is for six cents more than the mandate of the Supreme Court directed. This may well be, as appellee’s counsel suggest, a mere clerical mistake, which as such if it be deemed important, the court below doubtless has power to correct. At all events, de minimis non curat lex.

The decree of the Superior Court is affirmed.

Affirmed.

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Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a decree entered in the cause after it had been remanded by the Supreme Court.

It is contended that the Superior Court had not acquired jurisdiction when it. entered the decree now complained of, because the remanding order was filed one day, and the decree entered the day following upon only one day’s previous notice,instead of ten days as provided in the Practice Act (R. S., sec. 84, chap. 110). That provision of the statute is applicable by its terms “ when any cause or proceeding either at law or chancery is remanded by the Supreme Court or Appellate Court, as the case may be, for a new trial or hearing by the court in which such case was originally tried.” In such case upon the remanding order being filed, and not less than ten days’ notice thereof given to the adverse party, the cause will be reinstated. In the present case the cause was rerpanded to the Superior Court of Cook County, “ with directions to enter a decree awarding recovery in favor of the corporation against the defendant in error in the sum of seven hundred and fifty-four dollars and sixty-one cents.” In all other respects the decree was affirmed. It is evident that nothing remained for the Superior Court to do, except to obey the remanding order. It had no discretion to do otherwise. The cause was not therefore remanded “ for a new trial or hearing by the court.” Hence the provision of the statute above referred to is not by its terms applicable. That section of the Practice Act was amended as it now stands by an amendment in force July 1, 1885; prior to that amendment it required ten days’ notice whenever a cause was remanded. See Miller v. Glass, 14 Ill. App. 177-180. Such provision no longer exists. It appears that appellant was present in the Superior Courf by his counsel when July 18, 1903, the decree now complained of was entered, and had notice of the proceedings.

The decree is for six cents more than the mandate of the Supreme Court directed. This may well be, as appellee’s counsel suggest, a mere clerical mistake, which as such if it be deemed important, the court below doubtless has power to correct. At all events, de minimis non curat lex.

The decree of the Superior Court is affirmed.

Affirmed.

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118 Ill. App. 225, 1905 Ill. App. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boggiano-v-chicago-macaroni-manufacturing-co-illappct-1905.

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