Hawkins v. Harding

35 Ill. App. 25, 1889 Ill. App. LEXIS 486

• Court: Appellate Court of Illinois
• Decided: December 2, 1889
• Status: Published

Opinion

Moran, J.

The only question presented by this appeal is the refusal of the court to enter a rule on appellees to show cause why a certain judgment should not be satisfied of record. We think the rule was properly refused. Such rule must be based on matters occurring'subsequent to the judgment.

The affidavits filed in support ot" the rule show only grounds which were in existence long prior to the entry of the judgment. We find no cases in which the rule has been allowed on matters existing before judgment, and in the case cited by counsel the rule went on proof of satisfaction accepted after the judgment was entered. Lee v. Brown, 6 Johnson, 132.

The order denying the rule to show cause must be affirmed.

A petition for mandamus to compel the judge of the Superior Court to sign a bill of exceptions has been filed in this court entitled in this case, and a motion to quash the writ has been made and is submitted with the case on suggestions of counsel for the respective parties.

The petition was filed and summons issued without the leave of this court, on the theory that the statute regulating the pract:ce in mandamus in the Circuit' Courts was applicable to this court. This is a mistake. By Sec. 10 of the Appellate Court Act, it is provided that the process, practice and pleading in the Appellate Court shall be the same as that prescribed by the Supreme Court.

The practice in mandamus in the Supreme Court is shown in The People ex rel. Cunningham v. Thistlewood, 103 Ill. 139, where it is held that a petition to the court for leave to file before summons can be issued is necessary. The motion to quash the petition will therefore be granted.

Order affirmed and mandamus quashed.