Knopf v. Corcoran , 112 Ill. App. 320 ( 1904 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

There appears to be no doubt that appellant’s amended answer was filed April 22, 1902, in due time, and was in the hands of the clerk of the Superior Court when the default of the respondent was entered for alleged “ failure to plead, answer or demur according to the order entered April 5, 1902,” and when the final judgment was entered May 31, following. lío notice of the application for default or final judgment was served upon appellant or his attorneys, and according to the affidavits filed, the latter had no knowledge of the proceedings at the time. • So long as the answer of the respondent “ was on file, he could- not be regarded as being in default, nor could a judgment be rendered against him except upon a trial.” Mason v. Abbott, 83 Ill. 445. There is a large number of similar cases, which need not be cited in support of a rule so familiar.

The judgment in mandamus requires appellant to issue a warrant for the salary claimed . by appellee for the six days in August which he seeks to compel appellant to pay, although it appears from the answer that the county board 'had not authorized the payment or the issue of any such warrant. The statute provides that no payment of any account shall be made “ except b}*- the order of the county board, after approval by the finance committee.” R. S., chap. 34, sec. 63. Mandamus does not lie to compel a public official to make payments in violation of law, and it should never be awarded unless the party applying for it shows a clear legal right to have the thing done which he seeks, and by the person or body sought to be coerced. In doubtful cases it should not be granted. Swift v. Klein, 163 Ill. 269, 276; McGann v. The People, 194 Ill. 526, 545. See also People ex rel. v. Pavey, 137 Ill. 585, 588. Where the right is doubtful, the claimant must resort to some other appropriate remedy to determine it. The People ex rel. v. Johnson, 100 Ill. 537, 543.

It appears from appellant’s answer that the warrants drawn for the June and July salary payable to appellee were turned over on the latter’s written order to the person to whpm as “agent or bearer” he had directed them to be delivered. They were not therefore in appellant’s hands when the petition for mandamus was filed. It has been held in Brewer v. Griesheimer, 104 Ill. App. 323, 331, that an assignment by a wage earner of even unearned wages is not contrary to public policy. As the case stands, however, that question is not properly before us on this appeal.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.