Bergen v. Riggs, 40 Ill. 61 (1864)

April 1864 · Illinois Supreme Court

40 Ill. 61

Bergen et al. v. Riggs.

(April Term, 1864.)

1. Amending records in the Supreme Court. TMs court has no power to amend the records of the court below, or to make any order in regard to their amendment; nor will the court order an amendment of the transcript of that record filed in this court.

2. Continuance—to amend record below. If it appears to this court that an error has intervened in making up the record below, and that the party aggrieved thereby has not, since its discovery, had an opportunity to apply to that court for its correction, and that justice requires he shall have such opportunity, the cause will be continued in order to give him an opportunity to apply to the court below to have its record amended.

3. Cebtiobari—bringing wp amended record. After the record is corrected below, the party may bring up a transcript of the corrected record; or, upon the failure of the clerk below to furnish him such transcript, he may have a writ of certiora/ri, requiring the clerk to certify the corrected record to this court.

Writ of Error to the Circuit Court of Warren county.

Jt appearing that the hill of exceptions in this cause was not under seal, Mr. T. G-. Erost, for the plaintiffs in error, moved the court for leave to amend the record in that regard, or to permit the judge of the court below to amend the bill of exceptions by attaching his seal to his signature thereto.

Per Curiam:

This court as a court for the correction of errors, can only award a writ of certiorari to the keeper of the records.

To commence a suit in this court by writ of error—first, the writ of error issues, commanding the clerk of the court below to transmit to this court a transcript of the record in the cause; and, second, a scire facias summoning the party to appear. After the transcript of the record comes to this court, if either party suggests, upon affidavit, that the clerk has not certified a complete record, a writ of certiora/ri can be awarded, commanding the clerk to send up a complete transcript of the record.

This court has no power to amend the records of the court below, or to make any order in regard to their amendment. The court below, upon proper application and notice, has ample power to amend its records, and if the record there is incorrect in any respect, the party should apply to that court for its correction. After the record is corrected below, the party may bring up a transcript of the corrected record; or, upon the failure of the clerk below to furnish him with a copy of such record, he may have' a writ of certiorari, requiring the clerk to certify the corrected record to this court. If it satisfactorily appears to this court that an error has intervened in making up the record below, and that the party aggrieved •thereby has not, since its discovery, had an opportunity to apply to that court for its correction, and that justice requires he should have such opportunity, we will continue the cause in order to give him an opportunity to apply to the court below to have its record amended. But in no case will this court order an amendment of the record of the court below, or of the transcript of that record filed in this court.

Motion denied.

Subsequently, the parties, by stipulation, aided the omission of the seal from the bill of exceptions.