Cameron v. Savage, 40 Ill. 76 (1865)

April 1865 · Illinois Supreme Court

40 Ill. 76

Cameron v. Savage.

(April Term, 1865.)

1. Original papers—when this coy/rt will compel their production. Where an original paper used on the trial helow is in the hands of a party to the suit, this court may, in a proper case, compel its production; but when the paper is in the custody of the court below, or of its legal custodian, this court has no control over it.

2. Same—how they may be obtained. When it appears to be necessary that this court should have an original paper used on the trial below, for inspection, and such paper is in the custody of the clerk of the court below, he will be requested to send it up for that purpose, but this court cannot compel him to do so.

Mr. A. G. Kirkpatrick,

for the plaintiff in error, moved for a rule upon the clerk of the court below, to send up an original paper which was in evidence upon the trial, for the inspection of this court, it beiug necessary to the proper consideration of the case that the court should have that paper before them.

Per Curiam:

This court has no control of the records or original papers in the court below, and, therefore, must refuse the rule. We may request the clerk to send up, the paper, and no doubt he will readily do so. The clerk of this court will be directed to make that request. Where the paper is in the hands of a party to the suit, as in Holbrook v. Nichol, decided at April term, 1864, we may, in a proper case, compel its production. That is a very different case from this, where the paper desired is in the custody of the Circuit Court, or of the legal custodian of that court.

This court may require transcripts of records and papers appertaining to the cause in the court below, in a proper case, upon writ of certiorate; but cannot properly control the custody of the records themselves, or of original papers used upon the trial.

Motion denied.