Hall v. Royal Neighbors of America

• Decision Date: 17 December 1907
• Citation: 83 N.E. 145,231 Ill. 185
• Parties: HALL et al. v. ROYAL NEIGHBORS OF AMERICA.
• Court: Illinois Supreme Court

231 Ill. 185

83 N.E. 145

HALL et al.

v.ROYAL NEIGHBORS OF AMERICA.

Supreme Court of Illinois.

Dec. 17, 1907.

Appeal from Appellate Court, Third District, on Appeal from Ford County Court; H. H. Kerr, Judge.

Action by Zoe Hall and another against the Royal Neighbors of America. From a judgment for plaintiffs, defendant appealed to the Appellate Court for the Third District. In the Appellate Court appellant was denied leave to file a petition in the name of the people on its relation against H. H. Kerr, county judge. Judgment for plaintiffs was affirmed, and defendant appeals. Affirmed.

Benjamin D. Smith and J. T. & S. R. Kenworthy, for appellant.

Phillips & Ludlow, for appellees.

CARTWRIGHT, J.

The transcript of the record brought from the Appellate Court for the Third District on appeal, the assignment of errors indorsed thereon, and the briefs and arguments of counsel cover two separate cases. Only one case can be considered, since the law does not provide for a composite appeal or a medley of different suits. One of the suits is an action of assumpsit begun in the county court of Ford county by Zoe Hall and W. J. Lateer, guardian of Thad Hall, appellees, against Royal Neighbors of America, appellant, on a benefit certificate issued upon the life of Florence Hall, in which there was a judgment for $1,000 in favor of the plaintiffs and an appeal to the Appellate Court for the Third District. The other proceeding was begun in the Appellate Court by presenting a petition for a writ of mandamus in the name of the people of the state of Illinois, on the relation of the Royal Neighbors of America, against H. H. Kerr, county judge of Ford county, and asking leave to file the same, which was denied. The order of the county court allowing the appeal was entered on October 16, 1906, and contained the following provision: ‘Conditioned, however, on the defendant giving bond in the penal sum of $2,000, conditioned according to law, with security, on or before twenty days, and to be approved by the clerk of this court, and to file its bill of exceptions on or before thirty-five days.’ On November 2, 1906, the bond was filed, and on November 14th, seven days before the expiration of the time allowed for filing the bill of exceptions, it was signed and sealed by the judge, but was taken away by the attorney for the defendant, and was not filed until December 5, 1906. The clerk of the county court included the bill of exceptions so filed after the time allowed by the court in the transcript of the record certified to the Appellate Court. The bill of exceptions did not contain the instructions given or refused, the exceptions of the defendant to the rulings on instructions, the general verdict, the answer to special interrogatories, the motion for a new trial, the overruling of the same and exceptions thereto, or the exception of the judgment. The matters omitted were necessary to the consideration of the errors assigned in the Appellate Court, and at the February term, 1907, of the county court, motions of the appellant to have the bill of exceptions filed nunc pro tunc, and for an amendment of the same so as to show the omitted matters, were overruled. At the May term, 1907, of the Appellate Court, appellant moved the court for a writ of certiorari to the clerk of the county court, and for a continuance and an extension of time to file a complete record, abstract, and brief, and appellees filed their motion, asking the court to strike the bill of exceptions from the files. At that term appellant presented its petition in the name of the people, on the relation of appellant, against H. H. Kerr, county judge of Ford county, setting up the facts in relation to the bill of exceptions, and praying for a writ of mandamus directed to the said H. H. Kerr, county judge, commanding him to sign an amendment to the bill of exceptions, so as to present all the proceedings as the same transpired upon the trial of the cause. The Appellate Court refused to grant leave to file the petition. In the original case the court denied the motions of appellant for a writ of certiorari, a continuance and an extension of time to file a complete record, abstract, and brief, and sustained the motion of appellees to strike the bill of exceptions from the files. Appellant presented a bill of exceptions to the Appellate Court embodying all its motions and affidavits, the rulingsof the court and exceptions thereto, and asked the court to sign and seal the same, which the court refused to do. Appellees moved the court to affirm the judgment of the county court for a failure to file abstracts, brief, and argument in accordance with the rules of the court, and the motion was allowed and the judgment affirmed. Appellant asked for a certificate of importance, and prayed an appeal to this court, and the certificate of importance was made and the appeal granted and perfected.

As we interpret the record, the appeal was taken from the judgment of the Appellate Court affirming the judgment of the county court, and that case may properly be considered. A bill of exceptions was essential to the presentation and determination of the assignment of...