Ferris v. Commercial Nat. Bank of Chicago

Citation41 N.E. 1118,158 Ill. 237
PartiesFERRIS et al. v. COMMERCIAL NAT. BANK OF CHICAGO.
Decision Date11 October 1895
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Error to appellate court, First district.

Assumpsit by the Commercial National Bank of Chicago against Luther L. Ferris and Joseph Lapham, copartners as L. L. Ferris & Co. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendants bring error. Affirmed.

J. A. Fullenwider, for plaintiffs in error.

Bulkley, Gray & More, for defendant in error.

BAKER, J.

A motion is made by defendant in error to strike the bill of exceptions from the record. It appears from a memorandum indorsed thereon by the trial judge that the bill of exceptions was presented to him on the 6th day of February, 1894, which was within the time limited therefor by the order of the court. The fact that the judge failed to sign the same until the 23d day of February, and then signed and sealed it nunc pro tunc as of the 6th day of February, should not be permitted to work to the detriment of plaintiffs in error. The rule is that, where a party moves in apt time, he shall not be permitted to be injured by the delay or neglect of the court to act, but will be protected in his rights by a nunc pro tunc order, or otherwise. Gray v. Brignerdello, 1 Wall. 627.

This suit, which was upon a promissory note made by L. L. Ferris & Co., plaintiffs in error, was commenced in the circuit court of Cook county on the 12th day of January,[158 Ill. 240]1894, and a declaration filed. On the same day, the appearance of the defendants, waiving service of process, and consenting to an immediate trial, was entered by Abbott & Baker, attorneys at law. The record shows that a jury was impaneled ‘to try the issues joined,’ and that there were verdict and judgment in favor of the plaintiff, and against the defendants. On January 13th, after verdict, but before judgment, a special appearance of the defendants was entered by Mr. James A. Fullenwider, who filed a motion to set aside the verdict. Without any express order overruling said motion, judgment was, on January 20th, entered upon the verdict nunc pro tunc as of January 12th; and on the same day a motion was made under the special appearance in the cause to vacate the judgment, and also a motion to continue the hearing of said motion to set aside the judgment, both of which were denied. Again, on January 27th, the defendants moved the court to set aside the order of January 20th, and renewed their motions, which had been on that day overruled, and, in support thereof, offered to read certain purported affidavits of the defendant Ferris and five other persons, taken in the dominion of Canada, and an affidavit of defendants' counsel Fullenwider, taken in this state; but the court refused to vacate its order of January 20th, and overruled the said motions. To all of which said rulings by the court the defendants excepted, and sought in the appellate court a reversal thereof; but the appellate court affirmed the judgment below, and now by writ of error the record is brought here.

Plaintiffs in error contend that the trial court erred in rendering judgment pending, and without formally passing upon, their motion to set...

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29 cases
  • Mullins v. Rieger
    • United States
    • United States State Supreme Court of Missouri
    • 14 Octubre 1902
    ...... defendant is, will not be affected. Osborne v. Bank, . 9 Wheat. 738; Ferris v. Bank, 158 Ill. 237, 41 N.E. ......
  • White v. State
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Marzo 1915
    ......2, Cyc., p. 24; Cook v. Garza, 13. Tex.St. 431; Ferris v. Bank, 158 Ill. 237;. Gustaveson v. State, 10 Wyo. 300. ......
  • People v. Rosenwald
    • United States
    • Supreme Court of Illinois
    • 17 Febrero 1915
    ......         Appeal from Municipal Court of Chicago; Harry Olson, Judge.        Action by the People ...664;Hake v. Strubel, 121 Ill. 321, 12 N. E. 676;Ferris v. Commercial Nat. Bank, 158 Ill. 237, 41 N. E. 1118;West ......
  • West Chicago St. R. Co. v. Morrison, Adams & Allen Co.
    • United States
    • Supreme Court of Illinois
    • 20 Enero 1896
    ......Ferris v. Bank, 158 Ill. 237, 41 N. E. 1118. Our conclusion upon these assigned ......
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