Cowhick v. Gunn, 3 Ill. 417, 2 Scam. 417 (1840)

Dec. 1840 · Illinois Supreme Court

3 Ill. 417, 2 Scam. 417

Thomas Cowhick, appellant, v. Henry Gunn and Joseph DeFox, appellees.

Appeal from, Morgan.

A transcript of the record of a Circuit Court, which is not certified under the seal of the Court, is a nullity, and a writ of certiorari cannot be granted in such case; but the cause must be stricken from the docket.

William Brown, for the defendants in error,

moved the Court to strike this cause from the docket, upon the ground, that the transcript of the record filed herein, although properly certified by the clerk in other respects, was not under the seal of the Court below.

Whereupon M. McConnel and J. A. McDougall, for the plaintiff in error,

entered a cross motion, (based upon affidavit filed, showing that the seal was omitted by mistake,) to grant a rule, requiring the clerk of the Court below to certify to this Court a transcript of the record of said cause, under the seal of said Court.

The Court sustained the motion to strike the cause from the docket, and overruled the cross motion for a rule against the clerk below, upon the ground that the record filed, not being under the seal of the Court, was a nullity, and that the cross motion was in the nature of a motion for a writ of certiorari to amend the record, as in case of a diminution of record; which can only be granted in a case where a record is properly authenticated, but is defective in some of its parts.

It is the seal that gives authenticity to the proceedings of a court of record.