Heinsen v. Lamb

• Decision Date: 15 May 1886
• Parties: HEINSEN v. LAMB.
• Court: Illinois Supreme Court

117 Ill. 549

7 N.E. 75

HEINSEN

v.LAMB.

Supreme Court of Illinois.

May 15, 1886.

Appeal from Cook.

MULKEY, C. J.

On the eighteenth of September, 1883, Augustus Lamb brought an action of ejectment, in the circuit court of Cook county, against Nicholas Heinsen, for the recovery of lot 9, block 63, in South Chicago, being a subdivision by the Calumet & Chicago Canal & Dock Company, of the E. 1/2 of the W. 1/2 and part of the E. fractional 1/2 of section 6, township 37 N., range 15 N. of Indian boundary line, and that part of fractional section 6, township 37 N., range 15 S. of Indian boundary line, lying north of the Michigan Southern Railroad, and fractional section 5, township 37 N., range 15 N. of the Indian boundary line,-all in sections 5 and 6, township 37 N., range 15 E. of third P. M. The suit was subsequently dismissed, on the plaintiffs own motion, as to all the premises except a small part in the actual possession of the defendant, which is described in the record by metes and bounds. The cause was heard in January, 1886, before the court and a jury, resulting in a verdict and judgment for the plaintiff. The defendant took an appeal from the judgment to this court, and the cause was submitted at its March term, 1886. Upon filing the record here, appellee first discovered, as he claims, that certain important facts, materially affecting some of the questions raised by appellant, had been omitted in making up the bill of exceptions. He thereupon called the attention of appellant's counsel to the matter, and requested him to consent to an amendment of the record so as to make it truly represent the facts as they occurred. On failing to obtain such consent, appellee's counsel thereupon served appellant's attorney with a written notice that he would, ‘on Saturday, the twentieth day of March, 1886, at 10 A. M., or as soon thereafter as counsel could be heard, appear in open court, before the judge who tried the cause,’ and move the court to amend the bill of exceptions in the respect indicated. The motion was entered and allowed by the court in pursuance of the notice, and the bill of exceptions amended accordingly. Upon filing in this court a certified copy of the amendment, the appellant entered a motion to strike it from the files, which was reserved for the hearing.

As the question raised by this motion is of a preliminary character, it will be first disposed of. When a bill of exceptions is once signed and sealed by the judge who tried the cause, and is properly filed in court, it becomes a part of the record of the case to which it relates, and it stands precisely upon the same footing of any other record. If the bill of exceptions is executed and filed during term time, it may be amended at any time before the term expires, without notice. During the term time the presiding judge who signed it may make any changes or alterations in it which he thinks necessary to make it accord with the facts; but after the term expires he loses all power to alter or change it on his own motion or mere suggestion. In case of amendments of this kind during the term the proper practice is to call attention of counsel to the fact. But where a bill of exceptions, through inadvertence or mistake, has been so made up as to not fairly and truly represent what actually transpired in court, it may, upon due notice, be amended by order of the court at a subsequent term, as was done in this case, so as to make it conform to the real facts. That a bill of exceptions may be thus amended, has been expressly held by this court. Goodrich v. City of Minonk, 62 Ill. 121;Newman v. Ravenscroft, 67 Ill. 496. The motion to strike the transcript of the amended record from the files must be denied.

The appellee derives title to the property in dispute through a short and direct chain of conveyances from the Calumet & Chicago Canal & Dock Company. So far as this branch of the case is concerned, there is little or no difficulty. That company claimed title through numerous mesne conveyances from Samuel C. George, the patentee of the land. The records of the latter conveyances were all burned in the great fire at Chicago in 1871, and many of the conveyances themselves were either lost or destroyed, so that they could not be produced on the trial. Under these circumstances the plaintiff, in order to prove the contents of the lost or destroyed deeds, was compelled to rely on an abstract of title which had been prepared and delivered in due course of business, before the destruction of the records. The chief controversy in this case relates to the admissibility of this abstract in evidence for the purpose stated. It would be almost an endless task to follow counsel, in his very elaborate argument, for the purpose of replying in detail to the numerous objections urged against the title of appellee as presented by the record, and we shall not attempt to do so. Many of them are manifestly without force, and some of them are based upon an assumed state of facts of which the record affords no evidence; and, if not noticed in the present discussion, counsel will understand it is because they are regarded as belonging to one or the other of these classes. Assuming the contents of the lost or destroyed deeds in plaintiff's chain of title to be sufficiently established by the abstract of title used for that purpose, there is but little, if any, reason to doubt that the verdict and judgment in the case were warranted by the evidence; and as appellant has not shown, or even attempted to show, title in himself, or in any one else, it is only necessary to consider the more important objections urged against the appellee's title.

The first question to be considered, and by far the most important one in the case, is whether the abstract was made out in such manner and under such circumstances as to warrant its admission in evidence. The conditions upon which such an instrument, or any part thereof, may be admitted in evidence, are prescribed by statute with great particularity; hence there is no occasion for considering the question...