Chicago, M. & St. P. Ry. Co. v. Walsh

• Decision Date: 19 June 1894
• Citation: 37 N.E. 1001,150 Ill. 607
• Court: Illinois Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. WALSH.

150 Ill. 607

37 N.E. 1001

CHICAGO, M. & ST. P. RY. CO.

v.WALSH.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, first district.

Action on the case by Patrick Walsh against the Chicago, Milwaukee & St. Paul Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Reversed.

Edwin Walker and John T. Fish, for appellant.

Walker, Judd & Hawley, for appellee.

SHOPE, J.

This was an action by appellee against appellant to recover damages for personal injury. Trial by jury resulted in a verdict of $29,583.33 1/3, for which plaintiff had judgment. On appeal to the appellate court, that court found, and entered as a part of its final order, its finding, ‘that the record in this case does not contain any certificate that the bill of exceptions contained all the evidence introduced on the trial of the cause in the court below, and therefore this court is bound to presume there was sufficient evidence to sustain the judgment, and therefore declines to consider any and all of the errors assigned.’ The judgment was accordingly affirmed, and an appeal prayed and allowed to this court.

The only question we shall consider upon this record is that raised by the assignment of error that the appellate court erred in refusing to consider the errors of law and fact assigned in that court. If the bill of exceptions was properly certified, it was admittedly the duty of the appellate court to consider and determine the errors assigned. The bill of exceptions as originally incorporated into the record, was defective in that there was no certificate that it contained all of the evidence introduced at the trial. In the appellate court there was suggestion of diminution of the record, and leave asked, and granted, to file an additional record. The additional record filed was an additional transcript of the record of the circuit court of Cook county, certified by the judge before whom the trial was had, at the term of the court subsequent to that at which the judgment was rendered. It appears that the original bill of exceptions was signed and filed September 25, 1893, and an order was entered in the cause by the court, October 30, 1893, nunc pro tunc, as of September 25, 1893, as follows: ‘On motion of attorneys for defendant, after notice duly given to the plaintiff, and all parties being in court, and after a careful examination of the record in this case by the Honorable R. W. Clifford, judge thereof, and of the stenographer's transcript of the evidence heretofore filed herein, and made a part of the record in said court, and of the various papers and exhibits introduced in evidence in said case, and made a part of the record in said cause by being embodied in said bill of exceptions heretofore signed and sealed, to wit, on the 25th day of September, A. D. 1893, and the court being fully advised in the premises, said judge hereby certifies that he kept some minutes of the evidence in said case upon the trial thereof, but not sufficiently full to authorize the certificate from said minutes alone; that said bill of exceptions containedall the evidence offered or introduced in the case,-but further certifies that, on the motion for a new trial, said bill of exceptions hereinbefore referred to was presented and examined by said judge, and that from his personal knowledge and recollection it is true that said bill of exceptions contained all the evidence offered or introduced on the trial. And therefore, upon motion of defendant's counsel, it is ordered that the certificate of said judge to said bill of exceptions be so amended as to certify the facts by inserting the following, to wit: ‘The foregoing bill of exceptions contains all the testimony and evidence introduced in the case by either and both of said parties;’ and that this order be entered of record in said cause, nunc pro tunc as of the 25th day of September, A. D. 1893. To the entry of which said order, and the action of the court relative thereto, the plaintiff, by his counsel, then and there excepted. [Seal.] Richard W. Clifford, Judge of the Circuit Court of Cook County.'

Upon filing the original bill of exceptions, it became a part of the record in the cause, and if, for any reason, it failed to fully and correctly show what actually transpired at the trial, it was, like other portions of the record, amendable. After the term has expired at which the record is made, or the time limited for settling the bill of exceptions has passed, the amendment could be made only by bringing the parties in interest again into court, by the service of proper notice, and then only where there was some memoranda, minute, or note of the judge, or something appearing on the records of files of the court, to show the facts in respect of which the amendment is sought to be made. Coughran v. Gutcheus, 18 Ill. 390;Wallahan v. People, 40 Ill. 102;Goodrich v. Minonk, 62 Ill. 121;Heinsen v. Lamb, 117 Ill. 549, 7 N. E. 75;People v. Anthony, 129 Ill. 218, 21 N. E. 780. That proper notice was given of the intended application for amendment of the record, and that the parties in interest were actually present before the court upon such application, is not questioned. It is, however, insisted that the court was not authorized to make and enter the order amending the record, for the reason that it is not shown that it was made from any memoranda or minute kept by the judge, or that anything appeared in the record and files from which the amendment could be made. It is first objected that there was no separate bill of exceptions taken, showing upon what the court acted in making the amendment. Undoubtedly, if either party had seen proper to request it, such a bill of exceptions should have been allowed. But where the court recites in its order the facts upon which the amendment is predicated, and which is duly signed and sealed by the judge, as was here done, it performs the office of a bill of exceptions, and no objection is perceived to the practice of thus preserving in the record such facts. And this must necessarily be so where no bill of exceptions is asked, and the parties, being present in court, fail to object. Moreover, if the recitals in the order are to be rejected, as no part of the record, it cannot avail appellee. In Wallahan v. People, supra, which has been approved in many subsequent cases, it was held that where the court below has made an amendment, in the absence of any exception to the source of information upon which the court acted, it must be presumed there was something to amend by,-some note or memorandum of the evidence, sufficient to enable the court to make the proper amendment,-and that it was incumbent upon the party objecting to the amendment to show by bill of...