People ex rel. Hubbard v. Anthony

• Citation: 21 N.E. 780,129 Ill. 218
• Parties: PEOPLE ex rel. HUBBARD v. ANTHONY, Judge Superior Court.
• Decision Date: 15 June 1889
• Court: Illinois Supreme Court

129 Ill. 218

21 N.E. 780

PEOPLE ex rel. HUBBARD

v.ANTHONY, Judge Superior Court.

Supreme Court of Illinois.

June 15, 1889.

Appeal from appellate court, First district.

Franklin P. Simons, for appellant.

E. A. Sherburne, for appellee.

SHOPE, J.

This was a petition for mandamus presented in the appellate court of the First district, to compel respondent, Anthony, who is one of the judges of the superior court of Cook county, to sign an amended bill of exceptions in the case of McCormick et al. v. Hubbard et al, tried in the superior court before said judge without a jury. The trial of that cause resulted in a finding and judgment for plaintiffs. An appeal was prayed to the appellate court by Hubbard, defendant, and allowed upon the terms fixed in the order of the superior court, which order extended the time in which to file bond and bill of exceptions 30 days from the entry thereof. Within the time so fixed, appeal-bond was filed, and a bill of exceptions presented by the relator, Hubbard, which was duly signed and sealed by the judge, and filed. After the term at which the cause was tried, and the time limited by the order of court for filing bill of exceptions had expired, it was discovered that the bill of exceptions, as signed, contained no exception by the defendants to the finding of the court, the overruling of motion for new trial, or judgment. Upon notice to the adverse party, the defendant Hubbard, at a subsequent term, appeared in the superior court, Judge ANTHONY presiding, and presented an amended bill, showing such exceptions, duly made at the trial of the cause, and asked that the same be then signed and sealed by the judge, which was refused. The appellate court denied the writ of mandamus, (25 Ill. App. 532,) and this appeal is prosecuted from that order.

Where the bill of exceptions filed, by mistake or through inadvertence, fails to fairly present matters material to the cause, as they transpored on the trial, the right, in proper cases, to have an amended bill of exceptions signed and sealed, by the same judge, presiding at a subsequent term of the same court in which the cause was tried, upon proper notice to the adverse party, has received repeated recognition by this court, (Brooks v. Bruyn, 40 Ill. 64; Wallahan v. People, Id. 104; Goodrich v. City of Minonk, 62 Ill. 121;Newman v. Ravenscroft, 67 Ill. 496,) and was expressly sanctioned in the case of Heinsen v. Lamb, 117 Ill. 553, 7 N. E. Rep. 75. The power of the court to amend its record in other respects, at a term subsequent to that at which the record was made, upon the parties in interest being again brought into court by the service of proper notice, and saving rights that may have intervened, has frequently been upheld. Church v. English, 81 Ill. 442;Cook v. Wood, 24 Ill. 295;McCormick v. Wheeler, 36 Ill. 114. That the application was here made without unnecessary delay, and upon proper notice to the adverse party, accompanied by a copy of the amendment proposed, and that the application was in other respects sufficient, is not questioned; and the matter proposed to be incorporated into the record was necessary and material to the presentation of respondent's case on appeal or writ of error. Insurance Co. v. Peck, 126 Ill. 493, 18 N. E. Rep. 752. It would seem that appellant (relator) adopted the correct practice in his application for an amended bill of exceptions. It is not claimed that there were any memoranda, note, or other matter remaining on file or of record, or in possession of the judge, made by him, from which it could be determined that exception had been taken, as stated in the amended bill of exceptions presented by the relator. However, the judgment entered by the clerk, after showing the waiving of a jury, etc., and the finding for plaintiff, etc., recites the entry of a motion for new trial, the order overruling the same, and the formal entry of judgment, and then proceeds: ‘Whereupon the defendant, Daniel C. Hubbard, having entered his exceptions herein, prays an appeal,’ etc. It does not appear when the judgment was in fact written up by the clerk, or that it was made from any memoranda to which the court could properly refer in the matter of the correction applied for. We have repeatedly held that amendments to the record should not be made after the close of the term of court at which it was properly made, unless there is some memoranda, minute, or note of the judge, or something appearing on the record or files, to amend by. Authorities supra. If however, it be held that the language quoted from the entry by the clerk, ‘whereupon the defendant, Daniel C. Hubbard, having entered his exceptions herein,’ is such a memorandum appearing on the records of the court as contemplated, it is apparent that such memorandum is indefinite, and does not necessarily show that exception was taken to the finding of the court, the overruling of the motion for new trial, or the judgment itself, or either of them. As we shall see hereafter, such memorandum was referred to by the judge upon the applicationfor the amended bill of exceptions, and it was found by him not to be a memorandum from which he could determine the correctness of the amended bill of exceptions. The signing and sealing of a bill of exceptions by the trial judge is both a ministerial and judicial act. The determination of what it shall contain is necessarily judicial in its character. Hake v. Strubel, 121 Ill. 321, 12 N. E. Rep....