Miller v. Anderson

• Decision Date: 27 October 1915
• Docket Number: No. 9996.,9996.
• Citation: 269 Ill. 608,109 N.E. 1048
• Parties: MILLER et al. v. ANDERSON.
• Court: Illinois Supreme Court

269 Ill. 608

109 N.E. 1048

MILLER et al.

v.ANDERSON.

No. 9996.

Supreme Court of Illinois.

Oct. 27, 1915.

Error to Branch D, Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge.

Action by Otto Miller and others against Gustave Anderson. Judgment for plaintiffs was affirmed by the Appellate Court (189 Ill. App. 72), and defendant brings error. Reversed and remanded, with directions.

Frank C. Rathje and Adolph H. Wesemann, both of Chicago (Horace Kent Tenney, Charles F. Harding, Roger Sherman, Geo. T. Rogers, and Harry A. Parkin, all of Chicago, of counsel), for plaintiff in error.

Charles A. Williams, of Chicago (Mellville R. Adams, Jacob H. Marx, and Benjamin Epstein, all of Chicago, of counsel), for defendants in error.

CARTER, J.

This was an action brought in the municipal court of the city of Chicago by defendants in error against plaintiff in error to recover commissions on a sale of real estate, being ‘a first-class contract case,’ as that term is used in the Municipal Court Act. Jury was waived and trial had before the judge, and a judgment was entered in favor of defendants in error for $1,291.87 and costs. On appeal the judgment of the trial court was affirmed by the Appellate Court on the ground that there was no error in the record which was properly preserved for its consideration. The cause has been brought to this court on petition for certiorari.

[1] The principal question for our consideration is whether the Legislature, by an amendment to section 81 of the Practice Act in 1911 (Hurd's Stat. 1913, p. 1871), intended to do away with the necessity of formal exceptions to rulings of the trial court and to render all such rulings subject to review without such exceptions, at the instance of the party adversely affected thereby.

The portion of said section 81 of the Practice Act as amended, necessary to be construed, reads as follows:

‘If, during the progress of any trial in any civil or criminal cause, either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such ruling shall be deemed a matter for review in any court to which the same cause may be thereafter taken upon appeal or by writ of error without formal exception thereto, and after judgment, at any time during the term of the court at which judgment was entered or within such time thereafter as shall, during such term, be fixed by the court, any party desiring to prosecute a writ of error to or appeal from any such judgment, may submit to the court a stenographic report of the trial containing the evidence and the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge thereof, and he shall examine the same, and, if correct, officially certify to the correctness of such report, and the same shall thereupon be filed in said court and become a part of the record in said cause, and all matters and things contained in such stenographic report shall become as effectually a part of said record as if duly certified in a formal bill or bills of exceptions, or if, during the progress of any trial in any civil or criminal cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception and sign the same, and the said exception shall thereupon become a part of the record of such cause. A bill of exceptions, certificate of evidence, or report of trial allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried or by the presiding judge thereof, if more than one judge sat at the trial of the cause, without any seal of the court or judge annexed thereto.’

All of the first part of this section quoted, down to the portion beginning, ‘if, during the progress of any trial in any civil or criminal cause, either party shall allege an exception,’ etc., was added by said amendment of 1911. Section 81 was also amended in other particulars, especially by adding a new paragraph at the end, by which it was made possible to have a case reviewed on certain points without taking up a complete record upon following a certain procedure, the opposite party being entitled to notice and being privileged to have additional parts of the record included, and the Supreme or Appellate Court being authorized to require such further parts of the record certified as deemed necessary. We shall have occasion to refer to this paragraph later in this opinion.

Previous to the passage of the present Practice Act, in 1907, we are aware of no provision in our statutes that refers in any way to making a ‘certificate of evidence’ for the purpose of preserving evidence in any cause. Section 81 of said Practice Act, as enacted in 1907, was a substantial re-enactment of the portion of the Practice Act of 1872 as to bills of exceptions, with the added provisions as to the formality of signing or authenticating the bill of exceptions by the judge, and also how such bill of exceptions should be authenticated in case the judge who tried the cause was unable to do so on account of death, sickness, or other disability, here inserting for the first time the same provisions with reference to the signing and authentication of a certificate of evidence. For the first time in the Practice Act by the amendment of 1911 provision was made for the preservation of the record in the trial court for review in a higher court by a ‘stenographic report of the trial,’ although similar provisions had theretofore been made by the Legislature in 1905 in section 23 of the Municipal Court Act (Hurd's Rev. St. 1913, c. 37, § 286).

Counsel in this case do not agree as to whether the evidence and rulings of the court have been preserved by a ‘bill of exceptions' or a ‘stenographic report of the trial.’ On the one side it is contended that, regardless of whether the document is called a bill of exceptions or a report of the trial, it is in sufficient conformity with the statute to raise the questions here in dispute, while counsel on the other side insist that it is not a ‘stenographic report of the trial’ as provided for by statute, and that as a bill of exceptions it does not preserve for review the questioned rulings of the trial court. The specific contention is that the document does not preserve an exception to the entry of the judgment by the trial court, and that therefore the plaintiff in error cannot ask to have the judgment reversed on the ground that the evidence was insufficient to sustain the judgment.

Previous to the amendment of said section 81 in 1911, it had been held by this court in a long line of decisions that in the absence of an exception to the judgment, preserved by a bill of exceptions, in a case tried by the court, the sufficiency of the evidence to support the judgment could not be inquired into on appeal. Climax Tag Co. v. American Tag Co., 234 Ill. 179, 84 N. E. 873, and cases cited. Counsel for defendants in error concede that under section 81 as amended, if this document is a stenographic report, no exception need be preserved in the record to enable the finding of the court to be reviewed, but they insist that the document is a bill of exceptions, and that section 81 as now amended, read in connection with the rest of the Practice Act, properly construed, did not do away with the necessity of taking formal exceptions to the adverse rulings of the trial court, while counsel for plaintiff in error insist that the Legislature plainly intended to do away with the necessity of taking exceptions to the rulings of the trial court, whether the proceedings be preserved for review by stenographic report of the trial or by bill of exceptions.

The preservation of records for review in the higher court by ‘bills of exceptions,’ ‘certificates of evidence,’ ‘reports of trial,’ ‘statements of fact,’ ‘case made,’ or ‘abstract,’ is of statutory origin (Haines v. Danderine Co., 248 Ill. 259, 93 N. E. 743; 3 Cyc. 75; 3 Ency. of Pl. & Pr. 378), although in this state a certificate of evidence to preserve the evidence in chancery cases seems to have been incorporated into our practice without any special statute (Smith v. Newland, 40 Ill. 100;Flaherty v. McCormick, 123 Ill. 525, 14 N. E. 846). As already stated, in Illinois the methods of preserving the proceedings of the trial court for review in the higher court are by bill of exceptions, certificate of evidence, and stenographic report of the trial, and there is also provided by section 23 of the Municipal Court Act a method of preserving the proceedings for review by a ‘statement of facts.’ This court has held that the term ‘bill of exceptions' was not appropriately used with reference to proceedings in equity, ‘for it is never proper to take exceptions to the rulings of the court in a chancery case, as it would be, under like circumstances, in a case at law.’ Flaherty v. McCormick, supra, 123 Ill. 533, 14 N. E. 849. The term ‘bill of exceptions,’ however, has frequently been applied by this court in referring to a document used in equity proceedings to preserve evidence for review, and this, too, when no exceptions were required to be noted in such trials. White v. Morrison, 11 Ill. 361;Ferris v. McClure, 40 Ill. 99;McIntosh v. Saunders, 68 Ill. 128. The practice as to settling and signing certificates of evidence in chancery cases has always been the same in this state as in settling and signing bills of exceptions. People v. Williams, 91 Ill. 87;Conductors' Benefit Ass'n v. Leonard, 166 Ill. 154, 46 N. E. 756, and cases cited. Until the addition of the last paragraph of section 81 of the amendment of 1911, both bills of exceptions and certificates of evidence, if it was sought to show that the judgment or decree was not supported by the evidence, must show in some way that they contained all the evidence....