Farmers Oil & Supply Co. v. Illinois Central Railroad ( 1972 )

Mr. PRESIDING JUSTICE TRAPP

specially concurring in part and dissenting in part:

I concur in the disposition reached for the reason that our Courts have consistently held that they will not entertain an action for declaratory judgment which has the effect of ousting the court which, in fact, had jurisdiction of the subject matter and parties. (Fairbanks, Morse & Co. v. Freeport, 5 Ill.2d 85, 125 N.E.2d 57; Trojan Fireworks Co. v. Acme Specialties Corp., 66 Ill.App.2d 108, 213 N.E.2d 44; Wolf v. Solem, 26 Ill.App.2d 262, 167 N.E.2d 820.) Within such context it is not necessary to consider the exercise of discretion by the trial court.

I dissent from the language of the opinion which suggests that Supreme Court Rules 362 and 366 would permit the amendment of the record as sought here. Rule 362(b) provides that the application for amendment must show that the matters “[S] ought to be raised by the amendment are supported by the facts in the record on appeal.” Rule 366(a) (3) authorizes the reviewing Court to order or permit the record to be amended “[B]y correcting errors or by adding matters that should have been included.” Such Rules, in their plain language, seem explicit in limiting matters of amendment to those which were presented in the trial court but omitted from the record in that court.