Climax Tag Co. v. American Tag Co.

• Decision Date: 03 June 1908
• Citation: 84 N.E. 873,234 Ill. 179
• Parties: CLIMAX TAG CO. v. AMERICAN TAG CO.
• Court: Illinois Supreme Court

234 Ill. 179

84 N.E. 873

CLIMAX TAG CO.

v.AMERICAN TAG CO.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 3, 1908.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; M. W. Pinckney, Judge.

Action by the Climax Tag Company against the American Tag Company. Judgment for plaintiff, affirmed by the Appellate Court, and defendant appeals. Affirmed.

Castle, Williams, Long & Castle, for appellant.

John T. Richards, for appellee.

PER CURIAM.

This was an action of assumpsit by appellee against appellant, in the circuit court of Cook county, to recover the contract price of certain tag-stringing machines sold by appellee to appellant. By agreement of the parties a jury was waived, and the cause tried by the court. No propositions of law were submitted by either side. The court found the issues for plaintiff, and assessed its damages at $2,100. From that judgment the defendant prosecuted an appeal to the Appellate Court for the First District. That court held that while the bill of exceptions showed a motion for a new trial was made by the defendant, overruled and exception taken, it did not show that any exception was taken to the judgment itself, and that the record therefore presented no question for review by that court, and a judgment was entered by the Appellate Court affirming the judgment of the circuit court. The defendant below has prosecuted this appeal from the judgment of the Appellate Court.

The bill of exceptions shows that when, at the conclusion of the trial, the court announced its decision finding the issues for appellee, and assessing its damages at $2,100, counsel for appellant said, ‘I think you are wrong,’ and stated he desired to enter a motion for a new trial. No written motion was filed, and the bill of exceptions shows that upon the announcement by counsel of his desire to enter a motion for a new trial the court announced: ‘Motion for new trial overruled, and exception; appeal prayed to Appellate Court and granted; you can have thirty days for a bond.’ The bond was fixed at $2,500 and 90 days allowed for bill of exceptions. The appellant contends the statement by counsel when the court announced its decision, that he thought the court wrong, was a protest against the court's finding and judgment, and was to all intents and purposes an exception. We think this is incorrect. The mere announcement by counsel that he disagrees with the court is not equivalent to an exception to the court's ruling. Exceptions are taken for the purpose of preserving questions for review by a higher tribunal, and the statement by counsel that he thinks a ruling is wrong is no more effective to do this than a simple objection by counsel to a ruling would be. While no particular form of exception is required, it must appear from the bill of exceptions that what counsel did at the time was intended to preserve the question for review by a higher court. It seems too plain for argument that this was not made to appear by the statement of counsel relied upon.

It is further argued that counsel's statement that he thought the court wrong, followed by a motion for a new trial, which was overruled, exception taken to the order overruling the motion, and an appeal prayed and allowed, showed an intention to have the court's rulings reviewed, and that what he said as to the rendition of the judgment, in the light of the subsequent steps taken, should be held to be an exception to said judgment. An exception must be taken at the time the decision is made, and that it was so taken must be affirmatively shown by the bill of exceptions. Dickhut v. Durrell, 11 Ill. 72; Tidd's Practice, 863. A motion for a new trial in cases tried by a court without a jury is neither required nor authorized by law or the rules of practice, and can serve no purpose whatever in preserving questions for review in this court. Sands v. Wacaser, 149 Ill. 530, 36 N. E. 960;Sands v. Kagey, 150 Ill. 109, 36 N. E. 956;Union Ins. Co. v. Crosby, 172 Ill. 337,50 N. E. 200. If cases are found where a contrary view appears to have been entertained by the court, such cases are neither in harmony with the provisions of section 60 of the practice act (Hurd's Rev. St. 1905, c. 110) nor with the weight of the decisions of this court. This court has held, in a long line of decisions too numerous and too familiar to the profession to require their citation, that in the absence of an exception to the judgment in a case tried by the court, the sufficiency of the evidence to support the judgment cannot be inquired into upon an appeal.

Cincinnati, Indianapolis & Western Railway Co. v. People, 205 Ill. 538, 69 N. E. 40, was an appeal from the judgment in a case tried before the court without a jury. Appellant objected to certain testimony offered by appellee on the trial, but the objection was overruled, and the ruling of the court excepted to. This was shown by the bill of exceptions, but there was no exception to the judgment. The court said: ‘While there is no exception to the final judgment, the bill of exceptions shows that the appellant excepted to the ruling of the court in admitting the testimony of witnesses as to what occurred at the annual town meeting in the township of Long Creek with respect to the road and bridge tax. The evidence was admitted over the objection of appellant, and the ruling of the court was excepted to, and was properly preserved for review.’ While in that case the rule was perhaps stated more explicitly than it had been in former decisions, that rule was adopted and acted upon in many of the previous decisions of this court as well as in subjequent cases. Indeed, this is not a rule of practice established by the court, but is the law enacted by the Legislature. Hurd's Rev. St. 1905, c. 110, § 60. In so far as City of Alton v. Foster, 207 Ill. 150, 69 N. E. 783, announces a different rule it must be held to be in conflict with the statute and the weight of authority upon...