Schlesinger v. Allen ( 1897 )

Me. Justice Gary

delivered the opinion oe the Court.

By the record of this cause it appears that, on file in the Circuit Court, is a bill'in chancery, in which the appellees are complainants and the appellant, with others, are defendants, which bill bears indorsements as follows:

“ Recommendation of Master.

Chicago, III., August 22, 1896.

I have examined the foregoing bill and am of the opinion, upon a consideration of its allegations and the law, that the complainants are entitled to the injunction prayed for. I therefore recommend the following order.

Wm. Penimore Cooper,

Master.

Order of Injunction.

Let an injunction issue, as prayed for by the complainants, upon their giving the usual bond in the sum of $2,500, to be approved by the clerk of the court.

Frank Baker,

Judge Circuit Court, Cook County, Illinois.”

Following the bill is an injunction bond, but it does not appear that any further order was entered by the clerk, or that in fact any writ of injunction issued.

Undoubtedly, an order made by the Circuit Court for an injunction, should appear by an entry thereof by the clerk upon the record of the court. Sec. 14, Ch. 25, R. S.

But loose practice by one party should not be to the prejudice of his adversary. Such an order on the bill—which is part of the record—must be treated as prima, facie the act of the court, notwithstanding the fact that the clerk has not written up the formal order upon the record.

The rights of parties are to be protected, however remiss the clerk. Walker v. Schum, 42 Ill. 462.

It is the duty of solicitors obtaining orders and decrees in chancery to prepare them and see that they are recorded. Schneider v. Seibert, 50 Ill. 284.

They who neglect that duty may not complain that they have left undone those things 'which they ought to have done. Stevens v. Coffeen, 39 Ill. 148.

We have heretofore treated orders so shown as appealable. Mexican Asphalt Co. v. Mexican Asphalt Paving Co., 61 Ill. App. 354; Board of Education v. Frank, 64 Ill. App. 367. In this record, however, it affirmatively appears by a certificate of evidence, that there never was any action of the court upon the application for an injunction—that the order was signed by the judge between 7 and 8 p. m., at his private residence, and that he had been, during the day, sitting as a judge in the Criminal Court and not in the Circuit Court.

It appears in Blair v. Reading, 99 Ill. 600, that the delusion that a court ambulates with a judge, has not been confined to this county. U. S. Life Ins. Co. v. Shattuck, 57 Ill. App. 382, 159 Ill. 610.

Judges do have, by statutes, certain powers conferred upon them to be exercised in vacation; such as granting injunctions and issuing writs of habeas corpus, but if any statute confers upon a judge any judicial authority in term .time, other than such as results from the fact that he is at the head of the court, and then only while he is there at the head, such statute has escaped my notice.

It would seem to follow that the injunction in this case is void, and, as we understand the appellees’ brief, it is their position that therefore an appeal does not lie.

It would not have been safe for the appellant to have disregarded the injunction, trusting to that understanding of the law by the counsel of the appellees and the Circuit Court, on a proceeding for contempt. The more doubtful the power, perhaps the greater the contempt in defying it. Here was the order, signed by the judge whose authority the clerk would hardly question, and constituting a part of the record.

Prima facie, it lacked putting into form by the solicitor and recording bv the clerk. But if Walker v. Schum, 42 Ill. 462, is to be followed, as the record stood, it was an order of the court. N ow—for matter extrinsic—it is shown to be void.

In such cases what the record shows as valid, may be' reversed on appeal. Cook v. Remick, 19 Ill. 598, and cases there cited.

The order directing an injunction is reversed, and the cause remanded with directions to the Circuit Court to enter-an order vacating the original order, and whatever may have been done under it.

Reversed and remanded with directions.