Forquer v. Forquer

19 Ill. 68

• Court: Illinois Supreme Court
• Decided: November 15, 1857
• Status: Published

Opinion

Catón, C. J.

This was not a clerical mistake of the clerk in entering up the decree which was rendered by the court, but was an error of the court in rendering the decree, which should be reversed on error. There is nothing to show that the court noticed the prayer of the bill, that the rights of the widow, in the lease, should be reserved to her in the sale to be made of the premises, and that the judge intended to reserve such right in the decree. The draft of the decree was drawn by the complainants’ solicitor, and he swears that he inadvertently omitted to insert the saving clause, according to the prayer of the bill. The presumption is, that the court inspected the draft thus drawn, and pronounced it as the decree of the court, without critically comparing it with the bill, and hence was inadvertently led into the error which, undoubtedly, exists in the decree. The clerk correctly copied into the record the draft of the decree as it was rendered. If the judge’s minutes showed that there was a saving clause, we might presume that the draft prepared by the solicitor did not express the whole of the decree, and that the clerk had, by mistake, omitted to enter the saving clause in the decree, when the amendment might have been authorized by the statute of jeofails, but there is nothing to show that the court ever had an intention to insert such saving clause. This, then, was clearly a judicial, and not a clerical, error, which can only be corrected in this court.

The order must be reversed and the suit remanded.

Decree reversed.