Alley v. McCabe

• Decision Date: 26 October 1893
• Citation: 147 Ill. 410,35 N.E. 615
• Parties: ALLEY v. McCABE.
• Court: Illinois Supreme Court

147 Ill. 410

35 N.E. 615

ALLEY

v.McCABE.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from appellate court, first district.

Replevin by W. N. Alley against James McCabe. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff appeals. Affirmed.

Randall W. Burns, for appellant.

Winston & Meagher, for appellee.

WILKIN, J.

Appellant brought an action of replevin against appellee before a justice of the peace to recover a mare, alleged to be of the value of $50. The judgment of the justice's court was for the defendant, and plaintiff appealed to the circuit court of Cook county, where, after a delay of about two years and eight months, a trial by jury resulted in a judgment in favor of defendant for a return of the property and $485 damages. The plaintiff prayed and was allowed an appeal to the appellate court of the first district, and 30 days in which to file an appeal bond and bill of exceptions. The bond was duly filed, and record sent to the appellate court. The appellate court affirmed the judgment of the circuit court, but made a certificate of importance, upon which this appeal is prosecuted.

A motion is now made by appellee to dismiss the appeal on the ground that no bill of exceptions appears in the record. The sixth assignment of error, though imperfectly written, is intended to question the power of the court to enter a judgment for a sum in excess of $200,-the limit of the jurisdiction of a justice of the peace. The facts upon which that error is assigned appear from the record proper, as made up by the clerk, and no exception was necessary. Wiggins Ferry Co. v. People, 101 Ill. 446. The fact, therefore, that no bill of exceptions appears in the record is no ground for dismissing the appeal. That no bill of exceptions was signed and sealed by the judge who tried the case is admitted, and yet there is written in the record what counsel for appellant call and ask us to treat as a bill of exceptions. That such a practice cannot be countenanced is too apparent to be worthy of serious consideration. It amounts to asking us to say that a bill of exceptions can be made by the attorneys in a case without reference to the court. This request is based upon the statement of counsel that the judge who tried the case died before the time allowed by his order for filing the bill of exceptions expired, and therefore, without fault on the part of appellant, his signature could not be obtained. Whether a remedy can be found for appellant in such case or not, it is clear that the attorneys themselves cannot, by putting a paper on file, and calling it a bill of exceptions, give it that effect. That we cannot consider the errors assigned, questioning the rulings of the trial court in the admission and exclusion of evidence, the giving and refusing of instructions, and overruling appellant's motion for a new trial, in the absence of a proper bill of exceptions, has been so repeatedly decided that a citation of the cases is unnecessary.

It is, however, earnestly contended that, masmuch as appellant has been (as is said) deprived of the benefit of a bill of exceptions through no fault or negligence on his part, the appellate court should for that reason have granted him a new trial; and in support of this position counsel cites People v. Judge Superior Court, 40 Mich. 630; Benett v. Steamboat Co., 32 Eng. Law & Eq. 318; Owens v. Paxton, (N. C.) 11 S. E. 375, citing cases; Galbraith v. Green, 13 Serg. & R. 85. The strongest case seems to be that of State v. Weiskittle, 61 Md. 48, where it is said: ‘It is the established practice now, both in England and in this state, that when a party, without laches on his part, loses the benefit of his bill of exceptions by the death or illness of a judge, so that he cannot get his exceptions signed and sealed, he will be entitled to a new trial, notwithstanding the lapse of considerable time. Alex. Br. St. 133; Benett v. Steamboat Co., 32 Eng. Law & Eq. 318; Newton v. Boodle, 54 E. C. L. 795. In the last-cited case 17 months had elapsed, yet the court thought it possible the party might be entitled to a new trial, and therefore laid a rule to show cause why a new trial should not be allowed. In this state it is not admissible for another judge to pass upon the correctness of his predecessor's ruling in such case. The new trial will go as a matter of course where the exceptions were not signed and sealed, and cannot be, without default of the exceptant.’ We do not understand that the appellate courts of this state, or this court, is vested with power to grant new trials merely for the purpose of relieving a party of hardship resulting from some defect in the record, even though he is chargeable with no omission of duty or negligence whatever. On appeals of writs of error these courts sit merely for the purpose of reviewing the record upon errors properly assigned, and reverse and remand cases to be retried only when it is shown that error was committed in the former trial. The rule contended for does not address itself to our sense of justice. All presumptions are in favor of the fairness, impartiality, and regularity of the proceedings of the trial court. The party in whose favor the judgment has been rendered is on appeal or writ of error entitled to the benefit of those presumptions, and yet this rule deprives him of his judgment, and sends him back to the trial court to re-establish his claim, because, as is said, his adversary has been, without his fault, deprived of the means of pointing out errors which are said to have been committed on the former trial. Conceding that appellant could not by any means have relleved himself of the hardship resulting from the death of Judge Driggs, we can see no good reason or...