Moriarity v. City of Chicago, 131 Ill. App. 658 (1907)

March 18, 1907 · Illinois Appellate Court · Gen. No. 13,130

131 Ill. App. 658

John Moriarity v. City of Chicago et al.

Gen. No. 13,130.

1. Certiorabi—when laches bars right of review by. A delay of a year in applying for a writ of certiorari to review the proceedings of the civil service com,mission, constitutes such laches as will bar the remedy.

Oertiorari proceeding. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.

Heard in this court at the October term, 1906.

Affirmed.

Opinion filed March 18, 1907.

A. D. Gash, for plaintiff in error.

Michael F. Sullivan, for defendants in error; James Hamilton Lewis, Corporation Counsel, of counsel.

Mr. Presiding Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court quashing a writ of certiorari, to the civil service commissioners of Chicago. The case must he governed by the decision of the Supreme Court in the City of Chicago v. Condell, 224 Ill. 595.

Hl that case the Superior Court of Cook county had quashed the return of the civil service commissioners of the city of Chicago to a writ of certiorari which had been issued to them from said Superior Court. The civil service commissioners appealed to this court and we affirmed the judgment. 124 Ill. App. 64. We intimated, however, that the laches of the appellee in suing out his writ of certiorari might have been held by us fatal if it had been urged by the defendants at a proper .stage of the proceedings. The city prosecuted an appeal to the Supreme Court from our decision, where it was reversed, that court holding that the defense of laches was seasonably presented, and that the writ should not have issued, or, if issued, should have been quashed, irrespective of all other considerations because of the unreasonable delay of Condell in presenting his petition.

The delay in that case was for a year and a half; in the case at bar it was practically a year. The excuse given for the delay in the two eases was substantially the same. It has been adjudged insufficient by the Supreme Court. The difference between the durations of the delay is not material. The petition in neither case was brought “speedily.”

Moreover, as the Supreme Court also says in the Condell ease, “A writ of certiorari is not a writ of right, and whether it should be issued upon the presentation of a petition therefor is in a large measure discretionary with the court. * * * If it after-wards appears to the court that it was improvidently issued, it should be quashed.”

The Circuit Court exercised its discretion properly in this case, and its judgment is affirmed.

Affirmed.