Magill v. Brown

• Decision Date: 21 March 1881
• Parties: H. MAGILL et al.v.JOHN B. BROWN et al.
• Court: Illinois Supreme Court

98 Ill. 235

1881 WL 10469 (Ill.)

H. MAGILL et al.

v.JOHN B. BROWN et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 21, 1881.

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. MOORE & WARNER, for the appellants:

The bill of exceptions was prepared, filed and presented to one of the parties within the time limited by the court--and afterwards considered by the court, and certified to be correct,--signed and sealed. This made the bill a good one, and perfected the appeal. This made the bill a part of the record, and preserved the exceptions that were taken at the times shown by it. If it was filed in time, and afterwards signed and sealed by the court, it is immaterial when it was signed. French v. Edwards et al. 13 Wallace, 506; Dredge et al. v. Forsyth, 2 Black (U. S.) 567; Stanton v. Embree, 3 Otto, 555; United States v Bretting, 20 Howard, 252; Village of Hyde Park v. Dunham, 85 Ill. 569; Wilder et al. v. House, 40 Id. 92; Sutherland v. Rose, 47 Barbour, 149; Underwood v. Hossack, 40 Ill. 98; Roosevelt v. Fulton, 7 Cowen, 107.

This was a trial by the court without a jury, and the judge having signed and sealed the bill of exceptions it was a part of the record, and should not have been stricken from it. Secs. 60, 61, chap. 110, Rev. Stat. 1874.

The judge of the circuit court, after signing and sealing the bill, directed the clerk to erase and change his file mark, a matter that was not within the scope of his legal power. Goodrich v. Cook, 81 Ill. 41.

But if the bill was filed or made, in fact, under circumstances not authorized by law, motion should be made in the circuit court to strike it out of the record; and that not having been done, the Appellate Court could not legally do otherwise than consider it a part of the record. Hyde Park v. Dunham, 85 Ill. 571; Wilder et al. v. House, 40 Id. 92.

Messrs. MCCONNELL, RAYMOND & ROGERS, for the appellees Kinsman and others:

The bill of exceptions was properly stricken out. It should have been presented to the judge within the twenty-one days. Merely filing an ex parte statement with the clerk within the time, in vacation, avails nothing. Underwood v. Hossack, 40 Ill. 98; Burst v. Wayne, 13 Id. 664; Hance v. Miller, 21 Id. 636.

The judge, in signing this bill of exceptions, certifies expressly that it was not submitted to him in time, and that it was filed, in the first instance, improperly. He directed the clerk to change the original filemark, so that it should not appear that the bill had been signed by the judge before the original and unauthorized filing. It, therefore, “affirmatively appears, from the record,” that the bill of exceptions was not signed and sealed within the proper time. Otherwise, Hyde Park v. Dunham, 85 Ill. 57, and Wilder et al. v. House, 40 Id. 92.

Without the bill of exceptions, it does not appear that any of the claimants were non-residents.

An affidavit, in support of a motion for security for costs, must be saved by bill of exceptions. Lucas v. Farrington, 21 Ill. 34.

So, also, a motion to dismiss for want of bond, etc. Douglas v. Parker, 43 Ill. 146.

Mr. HENRY CRAWFORD, for the appellees:

No objection can be allowed on appeal not specifically made in the trial court. An exception should have been taken to the ruling on the motion for a new trial and the evidence preserved in a bill of exceptions. Reichwald v. Gaylord, 73 Ill. 502; Nason v. Letz, Id. 371.

In the absence of proof, the presumption must prevail that the judgment was warranted by the facts before the court. Choate v. Hathaway, 73 Ill. 518.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Claimants were creditors of Leverett Brown, deceased, and of whose estate defendants are the executors, and were so nominated in his will. Proceedings were had in the county court of De Witt county, by which the amounts due claimants were allowed against the estate of deceased as claims of the 7th class. It appears other parties, said to be non-residents of this State, filed a number of claims against the estate of deceased, but without giving security for costs, as counsel insist non-resident claimants are required by statute to do. Afterwards the county judge, being of opinion he was interested in the result of the proceedings in said estate then pending before him, ordered all matters concerning the estate to be certified to the circuit court of the county, which was done. On the 31st day of March, 1879, the claimants prosecuting this appeal filed an affidavit in the circuit court, stating the non-residence of the other claimants, and moved to dismiss each of their claims for want of security for costs, but the court overruled the motion. Their claims were afterwards allowed against the estate as of the 7th class.

In answer to a citation served upon them, the executors made a report of funds in their hands belonging to the estate, and after it was amended the report was approved by the circuit court where the estate was then being administered. Appellants asked the court to order the executors to pay their claims, which had been previously allowed in the county court, out of assets of the estate then in their hands, before making any payments on the claims of other creditors of the estate allowed at that term of the circuit court, but the motion was overruled by the court. An appeal was then prayed to the Appellate Court, from the orders of the circuit court, approving the executors' report and overruling these claimants' motion to have their claims paid to the exclusion of other creditors of the estate, which was allowed, on condition claimants would give bond with sureties--the “bond and bill of exceptions, to be filed in twenty-one days.”

The appeal bond required to be given to perfect the appeal was given within the time prescribed by the order of court, but no bill of exceptions signed by the judge who tried the cause on the circuit, was filed within that time. Counsel for the appealing claimants prepared a bill of exceptions, and caused it to be filed in the office of the clerk of the circuit court, but it was not...