Hansen v. Schlesinger

Mr. Justice Scott delivered the opinion of the Court: It appears from the record in this court, the June term, 1886, of the Superior Court of Cook county, convened on the 7th day of June, 1886, the Hon. Elliott Anthony, one of the judges of that court, presiding; that afterwards, on the 17th of the same month, in the same year, there was filed in the office of the clerk of that court a certain declaration, note and warrant of attorney, affidavit and cognovit, all of which appear in full in the transcript filed in this court; and afterwards, on the 17th day of June, 1886, the same being one of the days of the June term of said court, a judgment by confession was entered, in favor of Leopold Schlesinger and David Mayer, against Peter Hansen, Joseph A. Hansen and Daniel B. Hansen, for the sum of $5375.04. On the 26th day of June, 1886, being one of the days of the said June term of court, defendants appeared, and entered their motions to have the record amended, and to have the judgment rendered against them set aside, and to quash the execution that had been issued on such judgment. These several motions were overruled by the court, and its decisions in that respect were subsequently affirmed by the judgment of the Appellate Court for the First District. Although the questions raised on this record have been elaborately argued, the views entertained by this court may be briefly stated. Most of the principles of law applicable have been definitely settled by the previous decision of this court in Roche v. Beldam, 119 Ill. 320, and need no further discussion. The amendment which the defendants asked should be made was, that the record should be corrected so as to show “that the branch of the court which is presided over by the Honorable Elliott Anthony, one of the judges thereof, did not open on the 17th day of June, 1886, and the judge did not take his seat on the bench, till ten o’clock in the forenoon of that day; that the direction to enter such judgment, and pursuant to which it was entered, was indorsed by the judge upon the declaration filed in the cause, to which was then attached the cognovit, note and warrant of attorney filed therewith; that such indorsement was made before the hour of ten o’clock in the forenoon of said 17th day of June, and outside of the court room which was at that date occupied and used by said judge for the holding of his branch of said court.” There is nothing in this record that shows it was error, or even irregular, if the direction given to enter the judgment was in fact made before the hour of ten o’clock on the day it was rendered. It does not appear, from anything in this record, that the court was not then in open session. All that appears is, that the court convened for that term on the 7th day of June, 1886, and continued in session, until this judgment was rendered. Of course, the presumption will be indulged, the court took the usual recess from one day to the next, and over Sundays; but at what hour it announced it would resume its sessions on the succeeding days, nowhere appears in the record. It might have been at nine o’clock in the forenoon, for anything that appears in this record. Nor is there anything to show the direction given by the judge to enter the judgment, was made “outside of the court room” which at that date was used by him for holding a branch of the Superior Court. The record, in this respect, is absolutely silent. It is plain, therefore, there was no error in the court in refusing to amend its record. Indeed, it does not appear there was anything to amend by. It seems idle to present affidavits of the clerk of the court, to advise the judge presiding at the same term whether he had directed a judgment to be entered while the court was in session for business, or at an hour when he was not transacting the business of the court. The theory of the law is, that at the same term all proceedings rest in the breast of the judge of the court, and he can amend his record according to the facts within his own knowledge. The record shows the judgment in this ease was rendered in term time, and although it was rendered upon a cognovit, the same presumptions in its favor will be indulged as in the case of ordinary judgments of courts of general jurisdiction. (Bush v. Hanson, 70 Ill. 480.) But aside from this view, it was expressly ruled by this court in Roche v. Beldam, supra, it could not be shown by parol, the judgment was in fact rendered at an hour earlier than the time appointed for the convening of the court, simply by an order of the judge “at chambers,” in opposition to the record to the contrary. It was for the reason the record imports verity, and can not be contradicted by parol. • In respect to the other branch of the motion, unless some equitable ground was shown the judgment could not be set aside and the execution quashed. (Rising v. Brainard, 36 Ill. 79; Farwell v. Meyer, id. 510.) None has been shown in this case. There is no pretense the judgment was not confessed for the exact amount honestly due to plaintiffs from defendants. If the attorney waived more than he was authorized to do by the warrant of attorney, in respect to defendants’ right to an appeal or writ of error, it is obvious it did them no harm, for they have now had their day in court, notwithstanding the action of their attorney of which complaint is made. The judgment of the Appellate Court will be affirmed. Judgment affirmed.