Anonymous, 40 Ill. 77 (1866)

April 1866 · Illinois Supreme Court

40 Ill. 77

Anonymous.

(April Term, 1866.)

1. Original papers—how procured, to he inspected in this court. The Supreme Court cannot compel the clerk of the court below to surrender to any other person, or to send up to this court original papers used on the trial, and which are in his custody as an officer of the court.

2. But this court will, upon mere suggestion that the inspection of such original papers is important in determining the rights of parties, request the clerk of the court below to send them up for that purpose.

3. Or, perhaps, upon proper application, the necessity of so doing being shown, this court would award a subpoena duces tecum,, and thereby require the clerk to appear in person and produce the original papers for the inspection of the court.

Me. Scates stated to the court that upon the hearing of this cause it would be necessary to produce some of the original papers used on the trial below, with a view to their inspection by the court,-and the detection of certain erasures and interlineations appearing therein, and which do not appear in the transcript, and inquired whether a rule would be entered, upon mere suggestion, requiring the clerk below, in whose custody they were, to send them to this court, or whether an application for the rule must be based upon affidavit.

Per Curiam :

the clerk of the court below is the legal custodian of the records and files therein, and we have no power to compel him to surrender them to any other person. We may, as we often have done, request the clerk to send to us ^original papers which are in his custody, for our inspection, upon mere suggestion that such inspection would be important in determining the rights of parties, and have no doubt he will readily comply.

We might, perhaps, upon proper application, the necessity of so doing being shown, award a subpoena duces tecum, and thereby require the clerk to appear in person and produce the original papers for the inspection of the court.

In this case we will direct the clerk of this court to communicate to the clerk below, the request of the court to send up the papers, and should that request not be complied with, counsel can then apply for the subpoena duces tecum, if he desires.