#### Samuel E. Hibbard v. John M. Mueller.

1. Judgment—when may be vacated, at subsequent term. W here a motion to vacate a judgment is made at the same term at which judgment is rendered, and continued until a subsequent term, the court has power at such subsequent term to allow the motion and vacate the judgment.

2. Former decision. The case of National Insurance Company v. Chamber of Commerce, 69 Ill. 22, so far as it is in conflict with the rule above laid, down, is overruled

Writ of Error to the Superior Court of Cook County the Hon. Joseph E. Gary, Judge, presiding.

Mr. J. L. High, for the plaintiff in error.

Messrs. Hoyne, Horton & Hoyne, for the defendant in error.

Mr. Justice Craig

delivered the opinion of the Court:

At the October term, 1875, of the Superior Court of Cook County, a judgment by default was rendered against, the defendant in error. At the same term of court he ap*257peared and entered a motion to set aside the default and vacate the judgment. This motion the court continued until the November term of court, when it was heard and allowed ; and the only question presented by the record is, whether the court exceeded its power in allowing the motion to vacate the judgment.

There can be no doubt but the power of a circuit court to change or alter its judgments in a matter of substance is confined to the term of court at which the judgment is .rendered. During the term, in contemplation of law, the record containing the proceedings is in the breast of the court, and, while this continues, such amendments of the record as seem proper may be made; but after a final judgment has been entered, and the term of court at which the judgment was rendered has closed, no steps, having been taken to vacate the same, the court at a subsequent term has no power to alter or amend its final judgment so rendered, except perhaps in respect to mere matters of form. This is the doctrine of Cook v. Wood, 24 Ill. 295; Messervey v. Beckwith, 41 id. 452; McKindley v. Buck, 43 id. 488; Fix v. Quinn, 75 id. 232; Coursen v. Hixon, 78 id. 339; to which we have been referred by the counsel for plaintiff in error. These cases do not, however, control the question presented by this record. In all of them the motion to vacate or change the judgment was entered at a term subsequent to the rendition of the judgment, while here the motion to vacate the judgment was made at the term of court at which the judgment was rendered, and expressly continued by the court to the next term for hearinsr and decision.

This case is in all respects like Windett v. Hamilton, 52 Ill. 180, in which it was decided that where a final judgment is entered upon a default, and a motion is made at the term to vacate the judgment and set aside the default, and such motion is continued to a subsequent term, the court thereby retains its control over the judgment, and the motion may be allowed at a subsequent term. The lan*258guage there used is applicable here, where it is said: “ The default was taken at the September term and the motion made at that term to set it aside, which motion was continued for discussion to the next term, and then it was allowed. The motion having been entered at the September term, the cause was kept in court and remained on the docket. * * * The court at the October term had the same power over the cause that it had at the September term, the motion attaching to it at that term, and the cause remaining on the docket subject to this motion.” There is no substantial difference between the question here presented and the one determined in the case last cited, and this case must be controlled by that.

Indeed, no reason has been suggested in the argument, and none has occurred to us, which would compel the court to decide the motion made to vacate a judgment at the term in which it was entered, or lose power or jurisdiction over the subject matter of the motion. If such was the law, great hardship might occur in many cases, and the ends of justice might often be defeated. Suppose a judgment by default should be entered on the last day of a term of court, which was entirely destitute of merit, and the defendant should immediately appear and enter a motion to vacate the judgment, but owing to the press of other business the court could not find time to take up and act upon the motion until the time fixed by law for the court to adjourn for the term should arrive, would justice be subserved or the policy of the law be carried out by holding that the court was powerless to continue the motion to be heard and determined upon its merits at the next ensuing term of court? We apprehend not. And yet such would be the logical and legitimate effect of the doctrine contended for by the plaintiff in error. We have, however, been referred to National Insurance Company v. Chamber of Commerce, 69 Ill. 22, as an authority sustaining the position of plaintiff in error. The decision in that case, if adhered to, would control the question presented by this record. That case *259seems, however, to have been predicated upon Cook v. Wood, supra; and if it was like Cook v. Wood in its facts, the doctrine announced therein would be beyond question. But in the case of Cook v. Wood the judgment by default was rendered at the April term of court; the case passed off the docket; the motion to vacate was not entered until the following October term. Upon that state of facts it was properly held that the court had no jurisdiction to act on the motion; that the case had passed beyond the control of the court. In the Chamber of Commerce case the motion to vacate the judgment was entered at the same term of court the judgment was rendered, and continued to a subsequent term. This fact distinguished it from Cook v. Wood, and it is a misapprehension of the facts upon which the latter was decided, to hold that National Insurance Company v. Chamber of Commerce could be based upon Cook v. Wood. The case of National Insurance Company v. Chamber of Commerce being in conflict with Windett v. Hamilton, 52 Ill. 180, and not in harmony with subsequent cases where a similar principle was involved, it will be overruled.

We are of opinion, as the motion was made at the same term judgment was rendered, and regularly continued on the docket to the next term for decision, the court had the undoubted power to vacate the judgment at the subsequent term. This principle was recognized in Toledo, Peoria & Warsaw Railway Company v. Eastburn, 79 Ill. 141, and Combs v. Steele, 80 Ill. 103, and expressly decided in Hear-son v. Qraudine, at the present term.1 The judgment of the circuit court will be affirmed.

Judgment affirmed.

1

Reported in 87 Ill. 115.