McKindley v. Buck

43 Ill. 488

• Court: Illinois Supreme Court
• Decided: April 15, 1867
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This court decided in 1860, after much consideration, that a term of the Circuit Court having expired, no discretion or authority remained with that court to set aside a judgment. It might amend it in mere matter of form, after notice to the opposite party. Cook v. Wood et al., 24 Ill. 295. This decision has been adhered to, and will continue to be. This writ of error coram nobis, issued by the Superior Court of Chicago, has very much the appearance of an attempt to avoid this decision, but it cannot succeed.

This old writ has never been in use in this State, and it has fallen into desuetude even in England. Its place is most effectually supplied by the more summary proceeding by motion in the court where the error in fact occurred. In this very case, the defendants in error here, one of them, Maria Buck, entered her motion, at the term at which her default was entered, to set the default aside, and read her own affidavit and one made by her counsel, in support of her motion, which the court denied, and to which she excepted. Besort is then had, after the term was ended, to this obsolete writ, to effect that which, at the term, the court committing the alleged error, refused.

Counsel for defendants in error say, that these affidavits cannot be used here, as they are not in the record by bill of exceptions. Bor should they be. They appear in the record as a part of the history of the case, as made by the defendant Maria Buck, and follow immediately after the judgment by default taken against her, and they contain the facts, on which she then sought to set aside the default, and are the same, substantially, as alleged in the petition to the Superior Court for this writ of error. The court, on a full hearing of the motion, on her own proofs, refused to allow it. It was her business, as she excepted to the ruling of the court, to have embodied her proofs in a bill of exceptions, and thus brought the question before this court. A party cannot be indulged in a resort to different remedies where one properly adopted has failed of suecess on. its merits. It would be introducing a dangerous practice, should it be tolerated, and protract litigation to an indefinite extent.

If the defendant Maria Buck, could show a valid excuse for failing to set up her defense in the original suit, and that the judgment was inequitable, a court of chancery would interfere to relieve her. Such a mode of proceeding will best subserve the public interests, and best preserve the rights of all parties. The judgment on the writ of error coram nobis is reversed, and the writ quashed.

Judgment reversed,