People v. Rosenwald

• Decision Date: 17 February 1915
• Docket Number: No. 9864.,9864.
• Citation: 107 N.E. 854,266 Ill. 548
• Parties: PEOPLE v. ROSENWALD.
• Court: Illinois Supreme Court

266 Ill. 548

107 N.E. 854

PEOPLE

v.ROSENWALD.

No. 9864.

Supreme Court of Illinois.

Feb. 17, 1915.

Appeal from Municipal Court of Chicago; Harry Olson, Judge.

Action by the People against Augusta N. Rosenwald. Judgment for defendant, and the People appeal. Affirmed.

Maclay Hoyne, State's Atty., and Hart E. Baker, both of Chicago, for the People.

Adler & Lederer, of Chicago, for appellee.

CARTER, J.

This was an action brought by appellant in the municipal court of Chicago to recover taxes on the personal property of appellee for the year 1913, under section 230 of the Revenue Act (Hurd's Stat. 1913, p. 2065). The claim filed was for $7,826.11. The trial court allowed and entered judgment for $782.61. This appeal followed.

Counsel for appellee have made a motion to strike the bill of exceptions from the record, on the ground that it was not presented to the trial judge within 60 days for signing and sealing. This motion was taken with the case, and the question has been argued at length in the briefs.

The judgment was entered August 12, 1914. Under section 38 of the Municipal Court Act a bill of exceptions ‘may be tendered to the judge at any time within sixty days after the entry of a final order or judgment, or within such further time thereafter as the court, upon application made therefor within such sixty days, may allow.’ Hurd's Stat. 1913, p. 738. No order was entered extending the time, and it is agreed that the bill of exceptions, under this statute, should have been presented to the trial judge, Harry Olson, on or before October 11, 1914. The bill of exceptions in this record has this entry upon it in writing:

‘Presented this 10th day Oct., 1914.

‘Jacob H. Hopkins, Judge.’

At the close of the bill of exceptions is a certificate in the ordinary form, which ends with the sentence:

‘And this is accordingly done this 21st day of October, A. D. 1914, nunc pro tunc as of October 10, 1914.

‘Harry Olson, Judge. [Seal.]’

No other entry on the transcript of the record has been called to our attention, and we have found none, which bears in any way on the question of the time when the bill of exceptions was presented or signed, or the reason for the entry of the nunc pro tunc order.

Counsel on both sides state that section 81 of the Practice Act has been adopted by rule 23 of the municipal court (85 N. E. vii), and therefore applies here, and should be construed in deciding this question, along with said section 38 of the Municipal Court Act. We will so assume for the purposes of this case.

That part of section 81 of the Practice Act which we are asked to construe reads:

‘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. And in case the judge before whom the cause has heretofore been, or may hereafter be tried, is, by reason of death, sickness, or other disability, unable to hear and pass upon a motion for a new trial in a case at law, and allow and sign a bill of exceptions, certificate of evidence or report of trial, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such case has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion in a case at law, and allow a true bill of exceptions, certificate of evidence, or report of trial, shall pass upon said motion, in a case at law, and allow and sign such bill of exceptions, certificate of evidence or report of trial; and his ruling upon such motion in a case at law, and allowance and signing such bill of exceptions, certificate of evidence, or report of trial, shall be as valid as if such ruling and allowance and signing had been made by the judge before whom such cause was tried.’ Hurd's Stat. 1913, p. 1871.

Previous to 1907 the general Practice Act of this state contained no provisions of this kind. This court, however, had made numerous rulings before the passage of this portion of said section 81 of the Practice Act which had more or less bearing on the question here under consideration. In David v. Bradley, 79 Ill. 316, the court held that a bill of exceptions signed by one judge without the consent and against the objections of one of the parties, containing proceedings which took place wholly before another judge, was irregular and unauthorized. In Alley v. McCabe, 147 Ill. 410, 35 N. E. 615, the question was raised after the death of the trial judge whether any other judge had authority to sign the bill of exceptions, and it was there intimated that, even though this might be done, it would only be permitted where the record showed that the appellant had used due diligence to obtain a bill of exceptions, not only after, but before, the death of the trial judge. Later, in People v. McConnell, 155 Ill. 192, 40 N. E. 608, the same case being under consideration, it was held, after a review of the authorities, that after the death of the trial judge, after verdict, but before motion for new trial, the succeeding judge had authority, and it was his duty, to decide the motion for new trial.

By a long and unbroken line of decisions this court has also held that a bill of exceptions was originally intended to be reduced to form and signed during the term in which the cause is tried, except in cases where counsel consent, or the judge by an entry on the record directs, that it may be prepared in vacation and signed nunc pro tunc. Evans v. Fisher, 5 Gilman, 453;Wabash, St. Louis & Pacific Railway Co. v. People, 106 Ill. 652;Burst v. Wayne, 13 Ill. 664;Hake v. Strubel, 121 Ill. 321, 12 N. E. 676;Ferris v. Commercial Nat. Bank, 158 Ill. 237, 41 N. E. 1118;West Chicago Street Railroad Co. v. Morrison Co., 160 Ill. 288, 43 N. E. 393;Railway Conductors' Benefit Ass'n v. Leonard, 166 Ill. 154, 46 N. E. 756;Chaplin v. Illinois Terminal Railroad Co., 227 Ill. 166, 81 N. E. 15;Haines v. Danderine Co., 248 Ill. 259, 93 N. E. 743;Hill Co. v. Guaranty Co., 250 Ill. 242, 95 N. E. 150. This court held in Parker v. Village of La Grange, 167 Ill. 623, 48 N. E. 1057, that a bill of exceptions signed by a judge who was neither the judge who presided at the trial, nor the regular judge of the court in which the case was tried, will be stricken, on motion, in the Supreme Court. The rule has long been settled in this jurisdiction that a party who presents his bill of exceptions to the judge who tried the cause, within the time prescribed for filing the same, having thus done all he can, will not be prejudiced by the neglect or refusal of the judge to sign the bill of exceptions until after the time fixed for that purpose has expired. Underwood v. Hossack, 40 Ill. 98;Magill v. Brown, 98 Ill. 235;Hawes v. People, 129 Ill. 123, 21 N. E. 777;Hall v. Royal Neighbors, 231 Ill. 185, 83 N. E. 145;Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62, 96, N. E. 1019, Ann. Cas. 1913A, 911, and cases cited in note.

The general rule is that the time when the bill of exceptions was settled and signed must be shown affirmatively on the record 3 Ency. of Pl. & Pr. p. 474, and cases cited This court has said that in all cases the bill should appear, on its face, to have been taken and signed at the trial. Evans v. Fisher, supra, 5 Gilman, 456; Wabash, St. Louis & Pacific Railway Co. v. People, supra. We also said in Hall v. Royal Neighbors, supra, 231 Ill. on page 192, 83 N. E. on page 146:

‘If the date of presentation appears on the bill, an order may be made, whenever it is afterwards signed and sealed, to file it nunc pro tunc as of the date of such presentation to the judge.’

A reading of the foregoing and other decisions of this court makes it quite apparent that some of the provisions of section 81 of the Practice Act heretofore quoted were the established law of this state before these provisions were made a part of said act in 1907. Section 953 of the United States statutes, as amended in 1900, contains substantially the same provisions as to bills of exceptions and stenographic notes as are found in said section 81 of our Practice Act heretofore set out. Act June 5, 1900, c. 717, § 1, 31 Stat. 1899-1900, p. 270 (U. S. Comp. St. 1913, § 1590). It is manifest from comparing the provisions of the two statutes that ours was copied from that of the United States, with one or two slight changes that in no way affect the question here under consideration.

While this court has never had occasion, since its enactment, to construe our statute on the questions here under consideration, the federal courts have passed upon some features of the federal statute. It has been held that the words ‘other disability,’ in the phrase ‘by reason of death, sickness or other disability,’ should be construed to be a physical or mental disability of like character to death or sickness, by which the trial judge is disabled from the performance of judicial functions, and his absence from the district or circuit merely does not authorize the allowance and signing of a bill of exceptions by another judge. Western Dredging & Improvement Co. v. Heldmaier, 111 Fed. 123, 49 C. C. A. 264. We agree with the reasoning of that decision. Our statute must be construed, on this question, in the same manner. It may be noted in passing that the statute in question does not refer in any way to marking a bill of exceptions as presented, but only to the final signing of the bill. The federal court, in a later opinion involving the same case, held that the judge who actually tried the case, on the recitation in the bill of exceptions by him that he was absent from...