Vail v. Iglehart

Citations

• 69 Ill. 332

Syllabus

<p>1. Restoration of lost becobds. In a proceeding under the act of March 19, 1872, entitled “An act to provide for the restoration of court records which have been lost or destroyed,” the investigation should be limited to the inquiry: what was the substance of the original record sought to be restored.</p> <p>2. Same—questions not appearing of record. Questions affecting the judgment, other than those which appeared of record, should not be investigated in such a proceeding. The record should be restored substantially as it was, leaving the other part}- to any defenses not apparent on the face of the record, to be asserted in a different proceeding, precisely as if the loss or destruction had not occurred.</p> <p>8. Same—relief.; when refused and when allowed. If it clearly appears that the judgment- was, upon its face, void, no order should be made for its restoration, as the party is not injured by. the refusal. But where it appears that the judgment was voidable merely, or was, in all respects, regular and valid, the record thereof should be restored.</p> <p>4. Same—record includes more than the final judgment. As the order restoring a lost or destroyed record is to have the same effect as the original record would have, if in existence, it follows, that it is not sufficient to restore a part only of the lost record, such as the final judgment-, but the whole of it must be restored, including the summons, pleadings, etc. The court can only determine the legal effect of a judgment from an inspection of the whole record.</p> <p>5. Where, in a proceeding to restore the record of a judgment which was confessed on warrant of attorney and cognovit, neither the petition nor the order of the court showed what the warrant of attorney and cognovit contained, or whether the judgment was entered in term time or in vacation, it was held, the order of restoration was erroneous. In such a case the substance of the warrant of attorney and cognovit must be stated in the petitio