Silverman v. Childs

Mb. Pbesiding Justice Ball

delivered the opinion of the court.

Section 15 of Oh. 110 (Hurd) R. S., reads:

“The clerks of the courts shall keep a docket of all the causes pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and the name of the plaintiff’s attorney, and he shall furnish the judge and bar, at each term, with a copy of the same,” etc.

The docket thus made up is the regular trial calendar. Under Section 95 of the same chapter it is the duty of the clerk, when proper notice, supported by affidavit, has been given and that notice is filed by him, to place the specified cause on the short cause calendar. By this act the cause was stricken from the regular calendar, and it was then the duty of the clerk to have so marked it. This he did not do. By Section 99 of the same chapter it is provided:

“ If a suit, which is upon the regular trial calendar, shall be placed upon the ‘Short Cause Calendar,’ it shall be stricken off the regular trial calendar, and shall not again, be placed thereon, except upon notice to the defendant, his agent or attorney.”

It therefore appears that this case, at the time it was called for trial, was on neither calendar, and did not then stand for trial. The statute provides (Sec. IT) that “ all causes shall be tried, or otherwise disposed of, in the order they are placed upon the docket, unless the court for good and sufficient cause shall otherwise direct.”

It is evident that this cause was reached upon a call of the regular calendar, and was tried in its order as if it was properly there. The ignorance of the court as to the facts arbse from the neglect of the clerk to strike the case off the regular calendar when he placed it upon the short cause calendar. Such negligence of the clerk is sufficient ground for a writ of ooram nobis, and authorized the court to pass upon the motion to set aside the judgment at a subsequent term. Brady v. Washington Ins. Co., 82 Ill. App. 380.

We are of the opinion that the court erred in overruling the motion of appellant to vacate such judgment and to grant a new trial of said cause.

The judgment of the Circuit Court is reversed and the cause remanded.