People ex rel. v. Cloud, 3 Ill. 362, 2 Scam. 362 (1840)

Dec. 1840 · Illinois Supreme Court

3 Ill. 362, 2 Scam. 362

The People of the State of Illinois, ex relatione Joseph Stettinus and David A. January, v. Joseph Cloud, Clerk of the La Salle Circuit Court.

Motion for a Writ of Mandamus.

Where a judgment was rendered in the Circuit Court against the defendant, and on the last day of the term of the Court at which the judgment was rendered, a motion was made to set it aside, and grant a new trial, and, before any decision was had on the motion, the Court adjourned ; and on application of the plaintiffs, the clerk of the Court refused to issue execution, because the motion was undecided; the Supreme Court granted an alternative mandamus, requiring the clerk to issue execution, or show cause for his refusal. „

A motion for a peremptory writ, in the first instance, was refused.

J. D. Caton, for the relators.

Judgment was rendered in favor of the relators against David Wells, at the November term, 1840, of the La Salle Circuit Court, the Hon. Thomas Ford presiding, for $460,44, and costs of suit ; and on the last day of said term, the defendant moved the Court to set aside the judgment and grant a new trial, but before any decision was had on the motion, the Court adjourned.

The relators requested the clerk to issue an execution upon the judgment, which he declined doing ; on the ground, that the motion for a new trial was not disposed of.

The relators presented these facts to this Court, and obtained an alternative mandamus, requiring the clerk to issue execution, or show cause why he refused so to do, by the first day of February, 1840. The motion for a peremptory writ, in the first instance, was refused.