This has the appearance of a fictitious case. We will not consider it unless an affidavit shall be filed within thirty days, according to the requirements of ride thirty-eight of this court. The cause will be continued for that purpose, and if this rule shall not be complied with, the proceedings will be dismissed.
People ex rel. Roberts v. Leland, 40 Ill. 118 (1865)
April 1865
·
Illinois Supreme Court
40 Ill. 118
The People ex rel. Roberts v. Leland.
(April Term, 1865.)
Fictitious cases. Where a ease has the appearance of being a fictitious case, an affidavit will be required showing it not to be so, and on failure to comply with a rule in that regard, the cause will be dismissed.
This was an application for a writ of mandamus. The relator filed his suggestions in writing, not verified by affidavit, representing that he has applied in due form of law to Lorenzo Leland, the clerk of this court, for a writ of error and scire facias to hear errors, to remove into this court the record of the proceedings and judgment in a certain cause lately depending in the Superior Court of Chicago, in which cause said Roberts was defendant, and one Peter Sweat was plaintiff, and wherein judgment has been given for the said Sweat and against said Roberts, contrary to law and to his manifest injury, as he alleges; that the clerk refused to issue the process aforesaid, for the reason that said Roberts had failed to furnish, pay or tender any excise stamp, or the value thereof, for such process, and not for any other cause; and that said clerk insists *119that the act of congress, commonly known as the excise law, requires such stamp upon such process, which said Roberts denies.
Said Roberts thereupon moves the court to make an order, in the nature of a writ of mandamus, requiring the said clerk to issue the process aforesaid, without any excise stamp, or the price thereof, etc., for that, said Roberts is not bound by law to furnish or pay for any such stamp for such process as he hath applied for, and that the act of congress aforesaid doth not nor can lawfully apply to or affect any process of the courts of the several States, but is strictly confined to process of the courts of the United States, etc.
This paper was signed by counsel for the relator.
The clerk filed a statement in writing, admitting the application for the process, and his refusal to issue the same, for the reason above set forth, and expressed a willingness that the question should be decided upon this application.
It does not appear that any notice has been given to Sweat, of this motion.
The application was made at the April Term, 1863, of this court, and has been pending ever since.