Cott v. Sprague
| Decision Date | 31 October 1879 |
| Citation | 5 Ill.App. 99,5 Bradw. 99 |
| Parties | ALBERT B. VAN COTTv.J. R. SPRAGUE. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding. Opinion filed February 4, 1880.
Messrs. ELDRIDGE & TOURTELLOTTE, for appellant, cited Zuel v. Bowen, 78 Ill. 234; Evans v. Barton, 85 Ill. 579.
Messrs. BECKER & DALE, for appellee; that there being no errors assigned upon the transcript of record, there are none for the court to consider, cited Williston v. Fisher, 28 Ill. 43; Buckley v. Eaton, 60 Ill. 252; I. B. & W. R. R. Co. v. Rhodes, 76 Ill. 285.
As neither the record nor bill of exceptions show why the affidavit was stricken from the files, it will be presumed it was done for sufficient cause: Casey v. Harvey, 14 Ill. 45; Hough v. Baldwin, 16 Ill. 293; Bulger v. Hoffman, 45 Ill. 352; Reed v. Horne, 73 Ill. 598; Fanning v. Russell, 81 Ill. 398; Edbrooke v. Cooper, 79 Ill. 582.
The affidavit presented a dilatory defense, which should have been made before the justice; it came too late in Circuit Court: Conley v. Good, Breese, 135; Pearce v. Swan, 1 Scam. 266; Wilson v. Nettleton, 12 Ill. 61; Huftalin v. Misner, 70 Ill. 205; Zuel v. Bowen, 78 Ill. 234.
No affidavit denying joint liability being on file at the time of trial, a joint liability was conclusively admitted: Stevenson v. Farnsworth, 2 Gilm. 715; Warren v. Chambers, 12 Ill. 124; Dwight v. Newell, 15 Ill. 333; Frye v. Menkins, 15 Ill. 339; Davis v. Scaritt, 17 Ill. 202; Griswold v. Board of Trustees, 26 Ill. 41.
In this suit Albert B. Van Cott was sued in a justice's court, jointly with David B. Van Cott, upon a promissory note purporting to be signed by D. B. Van Cott & Co., and while it was pending on appeal in the Circuit Court, appellant filed his affidavit denying any co-partnership with said David B. Van Cott, and denied the execution of the note. Before trial in the Circuit Court, that affidavit was stricken from the files by the court. On the trial before the court and a jury, said Albert B. Van Cott sought to contest the execution of the note, but the court excluded the evidence offered for that purpose, and judgment went against him, from which he appealed to this court, and assigns for error the striking said affidavit from the files.
The bill of exceptions sets out the affidavit, and merely states that before trial the court struck it from the files, but does not in any manner preserve an exception to such action by the court, though one is entered by the clerk as a part of the record. Such an entry does not constitute a part of the record. The record proper in a suit at law consists of the process by which the defendant is brought into court, including the sheriff's return, the declaration, pleas, demurrer, if there is any; also any judgment upon demurrur, or other judgment, interlocutory or final. So that if judgment be given upon demurrer overruling or sustaining it, and is not waived by pleading over, or upon default--and in the former case the demurrer is improperly overruled or sustained, or in the latter the service is not in time, or the declaration fails to set out a cause of action, or the judgment is unauthorized by law, the party prejudiced may, on appeal or writ of error, assign error in the appellate court...
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Grand Pacific Hotel Co. v. Pinkerton
...the declaration, pleas, demurrer, if there is any, and any judgment upon demurrer or other judgment, interlocutory or final. Van Cott v. Sprague, 5 Ill. App. 99. The claim here is that, according to the showing of the record, Glennie was served with process, as well as the Grand Pacific Hot......
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Karnes v. Keck
...declaration, pleas, demurrer, if there is any; also any judgment upon demurrer, or other judgment, interlocutory or final" (Van Cott v. Sprague, 5 Ill. App. 99, 101), and that "our practice with regard to the making of records of judgments is different from that which obtained at common law......
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Baldwin v. McClelland
...are made by copying the files and the orders of court as entered of record by the clerk.’ Schirmer v. People, 33 Ill. 282. In Van Cott v. Sprague, 5 Ill. App. 99, the late Mr. Justice McAllister said: ‘The record proper in a suit at law consists of the process by which the defendant is brou......
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