Steele v. People, 40 Ill. 59 (1867)

Sept. 1867 · Illinois Supreme Court

40 Ill. 59

Steele v. The People.

(September Term, 1867.)

1. Certiorari—time within which it must be applied for. Au application for a writ of certiora/ri to enable the party to bring up a more perfect transcript of the record, will not be entertained after the term at which the cause was submitted to the court for decision.

2. If made during the term, however, the motion will be entertained, and, upon cause shown, the party will be afforded an opportunity of bringing up a correct transcript.

3. Motion for certiorari—after joinder in error and submission. A motion for a writ of certiorari by the plaintiff in error, after joinder in error and submission, will be regarded as including a motion to set aside the joinder and submission, as such condition of the case is inconsistent with the character of relief sought by the writ.

There was a joinder in error, and a submission of this cause, by both parties, for decision at the present term of the court. On a subsequent day of the term, the counsel for the plaintiff in error moved the court for an award of a writ of certiorari / and in support of the motion presented his own affidavit that upon an examination of the record in the court below it appeared the cause was there tried by eleven jurors only, when it appeared from the transcript of the record brought to this court that the cause was tried by twelve jurors, and, therefore, he says the same is not a correct transcript of the record.

Per Curiam :

As a rule of practice, we will not entertain an application of this character after the' term at which the cause was submitted to the court for decision. If made during the term, however, we can entertain the motion, and, upon cause shown, will afford the party an opportunity of bringing up a correct transcript of the record. But we must regard this motion for a writ of certiorari, as including an application to set aside the submission and the joinder in error, as the present condition of the case in that regard is inconsistent with the character of relief sought.

The submission and the joinder irr error will be set aside, and a writ of certiorari awarded.