Haines v. Knowlton Danderine Co.

• Decision Date: 10 February 1911
• Citation: 248 Ill. 259,93 N.E. 743
• Parties: HAINES v. KNOWLTON DANDERINE CO.
• Court: Illinois Supreme Court

248 Ill. 259

93 N.E. 743

HAINES

v.KNOWLTON DANDERINE CO.

Supreme Court of Illinois.

Dec. 21, 1910.

Rehearing Denied Feb. 10, 1911.

Appeal from Appellate Court, First District, on Appeal from Municipal Court of Chicago; McKenzie Cleland, Judge.

Action by George B. Haines against the Knowlton Danderine Company. Judgment for plaintiff, and defendant appeals. Affirmed.Moses, Rosenthal & Kennedy (Joseph W. Moses and Walter Bachrach, of counsel), for appellant.

James A. Brady and William English, for appellee.

DUNN, J.

The Knowlton Dandertine Company appealed to the Appellate Court for the First District from a judgment rendered against it in favor of George B. Haines by the municipal court of Chicago on July 11, 1908. The Appellate Court sustained a motion made by the appellee to strike from the record the bill of exceptions, and, because no error was assigned which appeared otherwise than by the bill of exceptions, the judgment was affirmed. A certificate of importance was granted, and the appellant has brought the record here; the only question presented being as to the action of the Appellate Court in striking the bill of exceptions from the record.

The case in the municipal court was one of the first class. Before the expiration of the period of 60 days within which the municipal court act provides a bill of exceptions may be tendered to the judge-that is, on September 3, 1908-an order was made extending the time for presenting the bill of exceptions to September 30th. On September 30th an order was entered upon the stipulation of the parties for a further extension, and similar orders were afterward entered upon a like stipulation, always before the expiration of the preceding extension. The bill of exceptions was presented on October 10, 1908.

Section 38 of the municipal court act provides that in cases of the first class ‘a bill of exceptions may be tendered to the judge at any time within sixty days after the entry of a final order or judgment, or within such further time thereafter as the court, upon application made therefor within such sixty days, may allow.’ Laws 1907, p. 244. The claim is made on behalf of the appellant that the court may grant repeated extensions indefinitely after the expiration of such 60 days, provided, only, that the original extension shall have been granted within such 60 days and the subsequent extensions within in the limit of a prior extension and by an agreement of the parties. The bill of exceptions, which was before unknown, had its origin in the statute Westminster II (13 Edw. I, c. 31), which directed the justices to allow and put their seals to an exception when he that alleges the exception writes the same and requires them to do so. The statute did not appoint the time when the exception should be allowed and sealed; but the practice was, as the nature of the thing required, that the substance of the exception should be reduced to writing when taken, though it need not then be drawn up in form. 2 Tidd's Pr. 863. By the statute of February 4, 1819 (which is now chapter 28 of the Revised Statutes) this statute became a part of the law of Illinois. Section 19 of the act of January 29, 1827, concerning practice in courts of law, which with slight changes is the first sentence of section 81 of the present practice at (Hurd's Rev. St. 1909, c. 110), introduced no change, but is substantially the same as the statute of Westminster II and is declaratory of the law as it has existed since the state was organized.

It seems never to have been regarded as necessary to reduce the bill of exceptions to form at the trial; but it was sufficient if this was done during the term, though it was essential that the bill should show that the exception was alleged at the trial. Gibbons v. Johnson 3 Scam. 61;Evans v. Fisher, 5 Gilman, 453;Burst v. Wayne, 13 Ill. 664;Walton v. United States, 9 Wheat. 651, 6 L. Ed. 182; Ex parte Bradstreet, 4 Pet. 102, 7 L. Ed. 796. On account of the inconvenience or necessity of the case, the practice seems always to have obtained, in cases where the parties agreed or the court so ordered, to permit the bill of exceptions to be prepared and signed in vacation or at a subsequent term. Evans v. Fisher, supra; Burst v. Wayne, supra; Ex parte Bradstreet, supra. This practice was not founded upon the statute, but grew out of the action of the courts. The opinion in Hake v. Strubel, 121 Ill. 321, 12 N. E. 676, inadvertently went too far in saying that the bill of exceptions was required to be presented, settled, signed, and sealed before verdict, or before the jury were discharged. Exceptions were required to be taken at the time, but might be reduced to form during the term.

When the municipal court act was adopted, it was provided by sections 19 and 28 that until otherwise provided by the rules of the municipal court, except as in the act otherwise prescribed, cases of the first class should be commenced and prosecuted in the same manner as similar suits or proceedings in the circuit court, and the practice should be the same. Laws 1905, pp. 166, 171. No other provision was made in regard to the time of preparing and filing bills of exceptions, for the sentence quoted above from section 38 of the municipal court act was not contained in that section originally. Bi...