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Houswerth v. Seidel

MARCH 12, 1964.

FRIEDA HOUSWERTH, HARRIET SIKOROWSKI AND RAYMOND WEY, PETITIONERS-APPELLANTS,

v.

JUDGE CHARLES G. SEIDEL, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 2, 1964.

This is an action in mandamus brought by the three petitioners-appellants to compel the respondent, Judge Charles G. Seidel, to approve an appeal bond from the Probate Court of Cook County to the Circuit Court. The Circuit Court dismissed the petition for the writ of mandamus. The petitioners moved to vacate the order, the court denied the motion and the petitioners have appealed.

The history of this case began with the death of Julia Oppenheim on June 25, 1960. Her will, dated April 3, 1959, named Joseph Perrye as executor. The will was filed in the Probate Court of Cook County June 30, 1960, but no immediate action was taken in reference to it. A second will, dated June 20, 1960, was filed subsequently in the same court and Irving Eisenberg, one of the two attorneys for the petitioners (who are nonresidents of Illinois), was appointed administrator with the will annexed. A month later Perrye petitioned for Eisenberg's removal as administrator, for the admission of the 1959 will to probate and for letters testamentary.

After several hearings were held, attorney Eisenberg was removed as administrator, the orders pertaining to the will of 1960 were vacated, the 1959 will was admitted to probate and Perrye was confirmed as executor. The petitioners moved to vacate the order appointing Perrye. On April 28, 1961, the motion to vacate the appointment was denied.

On May 23, 1961, an appeal bond to the Circuit Court was presented to the respondent, Judge Charles G. Seidel, a judge of the Circuit Court of Illinois, who was the acting judge of the Probate Court of Cook County. Judge Seidel wrote on the bond: "This Bond Proferred this day and disapproved."

A petition for a writ of mandamus was then filed in the Circuit Court to compel the respondent to approve the bond. An injunction was also prayed for in the same petition to restrain the Probate Court from further proceedings in the case and to enjoin further action on an order previously entered by that court which directed Eisenberg to turn over to Perrye estate funds in his possession. The motion for the restraining order was denied.

The original petition in mandamus was followed by amended petitions, motions to dismiss, motions to strike, answers, replies and affidavits in support of the various motions, answers and replies. Finally, the case became at issue and was tried on September 10, 1962. The issues joined in the pleadings were these:

(1) whether the petitioners had presented their bond for approval or had attempted to file it on other dates which were within the 20-day limitation;

(2) whether, within the 20-day period, the petitioners had sought or had been allowed extensions of time in which to file the bond;

(3) whether the respondent willfully refused to perform a ministerial act or whether his disapproval of the bond was an exercise of his judicial discretion;

(4) whether the respondent was justified in not approving the bond because:

(a) he had no jurisdiction to approve the bond under section 330 of the Probate Act (ch 3, Ill Rev Stat, 1959), since it was presented to him on May 23, 1961, more than 20 days after April 28, 1961, when the orders were entered from which the appeal was taken;

(b) no appeal had been taken from the orders admitting the 1959 will to probate and appointing ...


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