Metzger v. Morley

• Decision Date: 19 February 1900
• Parties: METZGER et al. v. MORLEY.
• Court: Illinois Supreme Court

184 Ill. 81

56 N.E. 299

METZGER et al.

v.MORLEY.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, Third district.

Assumpsit by Stephen K. Morley against William Metzger and another. There was a verdict for plaintiff, and defendants appealed. From the judgment of the appellate court dismissing the appeal (83 Ill. App. 113), defendants appeal. Affirmed.A. E. De Mange and J. E. Hoffman, for appellants.

Moore & Warner, for appellee.

This is an action of assumpsit brought by the appellee, Stephen K. Morley, against the appellants, William Metzger and Richard Snell. The plea of non assumpsit and certain special pleas were filed. Some of the special pleas were demurred to, and the demurrers thereto were sustained, but the demurrer to the fourth special plea was overruled. The pleas to which the demurrers were sustained were amended, and demurred to as amended, and the demurrers to the amended pleas were sustained. Replications were filed to the fourth plea, and issue was joined thereon. The cause was tried before the court and a jury, and a verdict was rendered in favor of the plaintiff below for $1,521.09. The defendants below, appellants here, entered their motion for a new trial, which was overruled, and the clerk of the circuit court wrote up the record as follows: ‘And the court having heard the motion, court overruled the same; and judgment on the verdict for $1,521.09. And now come the defendants, and pray an appeal, and appeal allowed on giving bond in the sum of $3,000.00 in twenty days, to be approved by the clerk. Bill of exceptions to be filed in 120 days.’ The foregoing entry is the only one appearing in the record which can be claimed as tending to show that a final judgment was rendered in the case. The bill of exceptions does not show that there was any exception taken by the appellants to any judgment. It only shows that there was an exception to the order of the court denying the motion for a new trial. The appellants took an appeal to the appellate court, and in the appellate court assigned, among other errors, the following: ‘There is nothing in the record which shows a judgment of the court.’‘The court erred in overruling the motion for a new trial, and then failing to act by rendering judgment for either plaintiff or defendants.’ In their argument in the appellate court the appellants contended that ‘the record does not show any judgment was ever rendered, the record merely showing that the court heard the motion for a new trial, and overruled it, which recital is in the following words: ‘And judgment on the verdict for $1,521.09.’ There is nothing to indicate that it was found, ordered, considered, or adjudged by the court that appellee or appellants, either one, should have or recover of the other the sum named, and fails to award execution to either party.' In the appellate court the appellee moved to dismiss the appeal upon the ground that no judgment had been rendered or entered in the case. The appellate court, after considering the suggestions submitted by appellee in support of, and by appellants in opposition to, the motion, sustained it as prayed, and dismissed the appeal. The present appeal to this court is from the order of the appellate court dismissing the appeal.

MAGRUDER, J. (after stating the facts).

The only question presented by this record is whether or not the appellate court erred in dismissing the appeal from the circuit court. The order of the appellate court dismissing the appeal does not recite the reasons for such dismissal, but the record of the appellate court shows the written motion of the appellee for the dismissal of the appeal, and also shows the reasons, in writing, upon which the motion was based. Randolph v. Emerick, 13 Ill. 344;Moore v. Williams, 132 Ill. 591, 24 N. E. 617. The main reason urged in favor of the dismissal of the appeal, as embodied in writing in the motion therefor, was that no valid judgment had been entered in the cause by the court below from which an appeal could be taken.

The following recital, made by the clerk in writing up the record, to wit, ‘And judgment on the verdict for $1,521.09,’ does not indicate that a judgment was regularly entered by the circuit court. The recital, so made by the clerk, amounts to nothing more than a loose memorandum, evidently intended as a guide to the clerk in making up his record at some subsequent time. Such an entry by the clerk cannot be called a judgment. ‘It does not state, by implication even, that it was found, ordered,...