Blatchford v. Newberry

Per Curiam: A judgment was rendered in the present cause, reversing the judgment below, in vacation after the January term, 1878. Petition for rehearing was subsequently filed, and a rehearing was ordered; and the cause was thereupon re-argued at the January term, 1880.. Upon full consideration, it was then again adjudged that the judgment below be reversed, and the judgment of the court was so entered of record on the 2d day of February, 1880. Subsequently, and after the expiration of the June term, 1880, in the same Grand Division, four judges of this court signed an order, in vacation, setting aside the judgment rendered at the January term, 1880, and ordering a rehearing of the cause. The present motion is to vacate that order and strike the cause from the docket. There is no pretence that the judgment of the 2d day-of February, 1880, was not entered of record as it was rendered, but the order was based entirely upon the fact that, upon subsequent reflection, certain members of the court who had consented to the judgment of the 2d day of February, 1880, had become dissatisfied with that judgment, and desired to hear further argument. There is no authority for making the order so made, aside from the statute, and sec. 15 of chap. 37, Revised Statutes of 1874, contains all the statutory authority conferred upon judges of this court to make orders in vacation. That section is as follows: “Whenever any judgment shall have been rendered in the Supreme Court which, upon further consideration, is found to have been erroneously entered up, the judges thereof are authorized, during vacation, to change the same without ordering a rehearing thereof, by entering a proper judgment in said cause; and in case a procedendo shall have been issued in such cause, the judges may recall the same, and by order of any of the judges, all proceedings taken by reason of such procedendo shall be vacated and set aside: Provided, that all such judgments shall be corrected within six months from the adjournment of the term at which they may have been rendered. ” It will be observed that the power here assumed to be conferred upon the judges is not to grant rehearings, but when a judgment is found to have been erroneously entered up, to change the same without ordering a rehearing: The words “ rendered ” and “ entered ” are plainly used antithetically, and each in its distinctive correct legal sense,— “ rendered ” being used to indicate the giving of judgment, and “ entered ” to indicate the act of placing the judgment renclered on record,—in other words, enrolling or recording it. “Erroneously entering up a judgment” expresses only an error in the clerical act of placing it upon the record, and implies that the judgment enrolled or recorded is not the judgment “rendered” or given. The words “upon further consideration, ” in this connection, clearly do not mean the act of giving judgment, but simply that upon further thought and reflection it-is discovered that the judgment rendered was erroneously—that is, incorrectly,—entered up. The further consideration is not, as contended by counsel, to be in reference to whether the judgment as rendered was a correct judgment or not, but whether the judgment as rendered is “ found to have been erroneously entered up.” It is quite true, as the counsel argue, that the words “it is considered, ” are the language of courts in pronouncing judgment, but that is not the language here used. The language here being “upon further consideration, ” which, so far as we have discovered, is never used to express the act of rendering a judgment anew, but is always used to express the act of further thought, reflection and deliberation. The change authorized—that is, “to change the same,’’—unmistakably refers back for its antecedent to the erroneous entry, and authorizes, not the rendering, but the entering of a proper judgment—that is to say, a judgment in conformity with that rendered. The argument sought to be drawn from the act of 1859 empowering the judges of the Supreme Court, or any four of them, to enter orders and judgments in vacation, etc., we do not regard .as of force in giving construction to this statute. The word “rendered” is not used in that statute at all, and so there is not any foundation for claiming that “ entered ” and “rendered” are ever used by the legislature as synonymous, and least of all where both words occur, as here, in the same sentence, and apparently each accurately in its own distinctive sense. The word “ entered, ” there, doubtless means “ cause to be entered, ” for it would seem quite clear that it intended a record of the judgment, order, etc., should be made, and not merely an announcement thereof, and this, of course, must be the act of the clerk. ° But to cause an entry to be made of a judgment, in vacation, in a ease which at the last term had been taken under advisement, of necessity implies that power shall be possessed to render the judgment or determine what the order shall be, and hence the power here expressly given carries with it the implied power to render the judgment, etc. The language used, therefore, instead of proving that .it means what it does not say, proves only that there is necessarily' implied a power, to express which in terms would have required other and different language. Messrs. Isham & Lincoln, for the appellants, contra. We deem it unnecessary to refer to the title of the act, or the previous practice of the court under this statute. The language is too plain to be controlled by such considerations. We are unanimous in these views. The order must be vacated, and the cause stricken from the docket. Cause stricken from the docket. On a subsequent day of the January term, 1881, Mr. James McCabtney, Attorney General, in behalf of the People, in conjunction with counsel for the appellees, presented an application asking this court, of its own motion, to set aside the judgment of this court entered on the 2d day of February, 1880, and to grant another hearing of the cause. Per Curiam : This is an application made at this term of the court, by counsel for appellees, asking this court now, of its own motion, to make an order setting aside the judgment of this court entered on the 2d day "of February, 1880, reversing the decree of the circuit court in this cause, and asking this court now to grant another hearing of this cause. This cause was first submitted for our consideration at the January term, 1878, and the opinion of the court was first filed on the 24th day of June, 1878, and a judgment was at once entered of record in accordance therewith, reversing the decree and remantling the cause. On petition of appellees, presented at the January term, 1879, a rehearing was granted at the January term, 1880, and at that term the cause was very elaborately argued by counsel, and on the 2d day of February, 1880, the original opinion, directing a reversal of the decree, was again approved and filed, and the same judgment was again entered in the cause. No proceedings in court have been had in this suit since that time. The June term of this court has intervened without any action by the parties seeking to disturb this judgment. We have given this application careful consideration, and we think the same can not properly be allowed. We do not undertake to say that in no case will this court, of its own motion, set aside a judgment at the second term after the same is rendered, or grant a rehearing; but we think it would be an unwise precedent should we do so merely because the views of some of the members of the court who concurred in rendering such judgment, may have changed in regard to the law affecting the case. When a cause has been twice deliberately heard and considered, and the same result reached at both hearings, and a judgment has been rendered and entered of record in accord with the then judgment of a majority of the court, public policy and the stability of legal proceedings demand that such judgment should not, after one entire term has intervened, be disturbed for no other cause than that some of the judges may have changed their views of the law. The Attorney General asks -leave to join in this application, and insists that the public have interests involved in this cause, and he urges a rehearing that he may have an opportunity to assert, support and vindicate the same. We are of opinion that in a cause brought here by appeal, none save such as are parties to the record in this court have a right to be heard. If the interests of the public be such that the Attorney General may properly intervene in this litigation, we think such intervention must begin in the court of original jurisdiction, and can not be allowed here. The application is denied. Rehearing denied. Subsequently, at the June term, 1881, counsel for the appellants in this case made application for leave to file in this court a petition for a writ of mandamus. The original suit, as will be seen by reference to the report of the case in 99 Ill. 11, was in chancery, instituted in the circuit court of Cook county, by Henry W. Newberry and others, claiming to be the ultimate distributees under the will of Walter L. Newberry, deceased, against Eliphalet W. Blatchford and others, the trustees appointed in the will and the widow of the testator. The purpose of the suit was to obtain a decree for the present distribution of the estate, it being alleged that the conditions necessary to such distribution were already existing, within the meaning of the will. The circuit court decreed the relief sought, but on appeal to this court the decree of the circuit court was reversed. The conclusion of the opinion in the case is as follows: “The decree must be reversed, and the cause remanded for further proceedings in conformity with this opinion,” (99 Ill. 64.) It is now sought to compel the circuit court, by mandamus, to dismiss the bill in that suit, the cause being now upon the docket of that court under the remanding order from this court. Mr. Edward S. Isham, in making the application for leave to file the petition, inquired of the court whether it was the proper practice to couple with the motion for leave to file the petition a motion for an alternative writ, or whether the motion for leave should be an independent motion, and first disposed of. Craig, Ch. J.: Under the practice in this court, after leave is given to file the petition, if, upon examination, it shall appear that sufficient cause is shown, we will award the summons without any special motion for that purpose. On a subsequent day of the term the ruling of the court upon the application for the writ of mandamus was announced, as follows: Craig, Ch. J.: A majority of the court have concluded to deny the writ. It is claimed by the relator that under the remandment of the cause to the circuit court for further proceedings in conformity with the opinion of this court, as expressed upon the reversal of the decree, there was nothing for the circuit court to do except to dismiss the bill, and as proceedings are being had in the cause in the circuit court inconsistent with such disposition of the case, this court should, by mandamus, compel the dismissal of the bill. The judgment pronounced by this court, upon the reversal of the decree, did not give any specific directions in regard to the course the case should take when it was returned to the circuit court,—that court was not directed to dismiss the bill, or to enter any partióular order. The judgment of this court was that the cause be remanded to the circuit court for further proceedings in conformity with the opinion of this court. Of course, if the circuit court should take any steps supposed to be contrary to law, its action can be reviewed upon writ of error or appeal. But under a remanding order of this character we do not think we would be justified in awarding a writ of mandamus to compel the circuit court to enter any particular order in the case. Mandamus denied.