The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1889-11-30
Circuit Court Decisions Handed Down on
Monday Last by Judge Dibeil.
THE EyANs-FUNK CASE.

petition for mandamuS, In eTtenSO. lie
first discussed the word interest"
which he holds to mean a direct pc
cuniary interest, as in that OF an estate,
where such interest could be affected
by his rulings or orders in the, settle
ment of the estate. AS to prejudice,
the court says, petition shows clearly
that Evans was prejudiced against
!. Funk in the matter before him, ana
the court does not approve OF the
course of the probate Judge In proceed
ing to hear the cause notwithstanding
such prejudic; but that prejudice Is
not sufficient to deprive him OF ]urls-
dictiOn; nor is that prejudice the IN
terest" named in the statute as depriv-
ING him of that Jurisdiction. The
other pOints are then discussed in Or
der-the claims Of interest in the
$500 fee matter and the minor mat
ter. AS to Judge Evans acting as at
tOrney, the Court holds that a probate
Judge as such has the right to make
enquiry on his own account as to the
truth Of representations made to him
in the settlement of estates; nor would
such action on his part constitute
him necessarily an attorney for any
one. Allegations, further, made on
information and belief are not suffi-
cient to deprive judge of jurisdiction.
TO authorize mandamus, the allega-
ton of facts must show the actual eX-
istence or interest and not suspicion
thereof. If Judge Evans is actually
the attorney or adviser OF the M0hr
heirs, in their proceedings in either
the Circuit or Probate Courts he Is dis
qualified to act as Judge in the case
in the Probate Court; but this petit
tion for mandamuS must state that
fact positively. 1t is stated simply
as information and belief, which
il accepted to mean positive aSSer-
ton would be sufficient to sustain the
petition; yet if the fact tnrned
out not to be true, it might leave
Funk loop-hOle to escape charge
of perjury, by acting so as to qualify
his statements. If Funk is prepared
to swear positively that Judge Evans
is or was at the time acting as legal
adviser of the Mohr heirs, the petition
can be so amended; and it will then
be sufficient, if proven, to cause an
awarding of the mandamus..
The opinion cOncludeswith the fol-
lowing recapitulatiOn:
]. That this petition does show that
Judge Evans was seriously prejudiced
against Funk; that this prejudice
might have been awaited of for a
change of venue, or should have sug-
gested to Judge Evans the propriety
of calling in another judge to try the
case; but that prejudice, however
great, is not the interest which under
the statute absolutely defeats the
jurisdiction of the judge, and renders
all his acts null and void, and hence
is not the interest meant by the stat
ute requiring a cause to be certified to
the Circuit Court.
g. That the matters involved in the
$500 transaction are not draw in is
sue by the petition of Simon MOhr and
others, and that if any controversy
concerning that matter should hereaf-
ter arise, or if Judge Evans should be
needed hereafter as a witness concern
ing that matter in court, that partlc-
ular controversy will be the only mat
ter to be certified to the Circuit Court
and it cannot now be fOreSeen that
any such controversy will arise.
3. That the same is true as to the
charges about the mirror and the SlOC
settlement.
4. That the charges that Evans is
acting as legal adviser of Simon MOhl
and his cO-petitiOners would be sutfi-
cient to sustain this proceeding if they
were stated positively and as facts:
but that being mere matters OF rum0r,
suspicion and belief, they are not suf-
ficiently stated to Justify the court in
awarding a mandamuS: and that ii
they are meant to be atfirmatively and
positively stated, the petition can cas-
ily be amended SO as to remove all
doubt on that point.
In the case of Rowland V. Mar
settles, the court having ordered a
writ of pre-emptory injunction to
issue, compelling the village of Mar
settles to pay to Rowland 81 900 OF the
$500 judgment which Rowland had
secured against the village, the vii
lage took an appeal, and should have
filed it's certificate of evidence on Sept.
Is, but by agreement of both parties
the time was extended to Oct. !.
Later, by another agreement, it was
further extended to Oct. 10. On Oct.
the certificate was handed to the
attorneys for the plaintiff and re-
turned to the defense on the morning
of the tenth. when 1T was sent by eX-
gress to Judge Dibill, who did not,
however, receive it until the eleventh.
The Judge had serious doubts as to his
right to sign the certificate, and upon
motion being made and signed, took
the case under advisement, and de-
the eleventh, as, should he refuse to dc
cided yesterday to extend the time to
so, the defendant would have no other
recourse than to apply for writ of
mandamus, to compel him to do so.
If he was wrong the question could be
decided in the Appellate court much
more easily and at a less expense than
would be involved in swearing out a
writ of mandamuS. In any event,
should he deny the motion, he would
place himself in position as antago.
nistic to the Defense and this he did
not desire to do. He considered his
jurisdiction perfect and would sustain
the motion to extend time.
In the ne ereat republica case of Chris
toph Oehler V. Casper Reudy, the
COURT in denying the motion to quash
the writ, held that the certificate OF
the master in Chancery was sufficient
and the contents of the petition am
pie in allegation of facts. The de,
Pendant haI cnnrhf n haya no Wri