People ex rel. Cunningham v. Thistlewood

Citations

• 103 Ill. 139

Syllabus

<p>1. Mandamus—as ah original proceeding in this court—practice—not controlled by the statute. The statute regulating the practice in mandamus cases (Rev. Stat. 1874, p. 691,) has no application to practice in the Supreme Court. It was designed to regulate the practice in the circuit courts, and not in this court. However, the practice in such cases in this court will be made to conform, as nearly as may be, to that as regulated by statute in the circuit courts.</p> <p>2. Same—petition filed only upon leave—summons awarded only upon cause—when returnable. The summons in mandamus, in an original proceeding in the Supreme Court, will not be awarded, as a matter of course, but only upon cause shown by petition,* and the petition can be filed only upon leave granted for that purpose.</p> <p>3. If, upon examination of the petition, no cause is shown for awarding the summons, it will be denied,† as was the practice in this court before the passage of the statute. Where the petition shows sufficient cause, the summons will be ordered to be issued, as it would from the circuit court.‡ </p> <p>4. If the matter to be litigated concerns the public interest, the court has uniformly made the writ returnable to the term at which the application is made, but if it be of a mere private nature, the practice is to make the writ returnable to the succeeding term.</p> <p>5. Same—also, of the time of service of the summons. The summons should, in any cáse, be made returnable at a time not less than five days prior to the hearing, but there is nothing in the statute or in the practice that obtains, which requires there should be five days service before the matter can be heard in this court. '</p> <p>6. Continuance—in mandamus—for want of service. It is a sufficient ground for a continuance in a proceeding for mandamus in this court, where the action or conduct of several persons is sought to be affected or controlled by the writ, that some of the persons so to be affected have not been