T.E. Hill Co. v. United States Fid. Delity & Guar. Co.

• Decision Date: 07 June 1911
• Citation: 250 Ill. 242,95 N.E. 150
• Court: Illinois Supreme Court
• Parties: T. E. HILL CO. v. UNITED STATES FIDELITY DELITY & GUARANTY CO.

250 Ill. 242

95 N.E. 150

T. E. HILL CO.

v.UNITED STATES FIDELITY DELITY & GUARANTY CO.

Supreme Court of Illinois.

April 19, 1911.

Rehearing Denied June 7, 1911.

Error to Appellate Court, First District, on Error to Municipal Court of Chicago; John H. Hume, Judge.

Certiorari by the United States Fidelity & Guaranty Company to review a judgment of the Appellate Court reversing a judgment in favor of petitioner against the T. E. Hill Company. Affirmed.

John A. Bloomingston, for plaintiff in error.

Buell & Abbey and Fred W. Bentley, for defendant in error.

CARTER, J.

This was an action brought in the municipal court of Chicago by defendant in error against plaintiff in error, the latter company having signed as surety a petitioning creditors' bond for the appointment of a receiver in an involuntary bankruptcy proceeding in the United States District Court. On November 18, 1905, shortly after the receiver took possession of the property, defendant in error made a voluntary assignment for the benefit of creditors. The order of the United States Court of Appeals affirming the decision of the district court dismissing the petition was entered November 25, 1906. The suit on this bond was begun February 6, 1907. The cause was submitted to the trial judge without a jury, and judgment entered in favor of plaintiff in error. The cause being taken to the Appellate late Court for the First District by writ of error, the judgment of the trial court was reversed and judgment entered in the Appellate Court in favor of the defendant in error for $5,000 debt and $5,000 damages. Thereafter, on a petition for certiorari, the cause was brought here for further review.

Plaintiff in error has moved in this court to strike the bill of exceptions from the files, and this motion was taken with the case. The judgment was rendered in the municipal court March 19, 1908. On the same day an order was entered that a bill of exceptions be filed in 40 days. April 25, 1908, the time for filing a bill of exceptions was extended 60 days from April 28, 1908. June 15, 1908, the time for filing a bill of exceptions was extended 60 days from June 27th. September 28, 1908, the bill of exceptions was signed and was filed in the municipal court the same date. It was marked as follows: ‘June 25, '08, presented for signature.-John H. Hume, Judge.’ It was filed as of September 28, 1908, and not as of June 25th.

It is first insisted that the motion to strike the bill of exceptions from the files should be sustained because section 38 of the municipal court act (Hurd's Rev. St. 1909, c. 37, § 301) permits, in first-class cases such as this, only one extension of time for filing the bill of exceptions. If the bill of exceptions had been signed and sealed by the judge when it was presented on June 25, 1908, no question could be raised as to its being signed within the time required by statute. Haines v. Danderine Co., 248 Ill. 259, 93 N. E. 743. It is further insisted by counsel that the bill of exceptions should be stricken because it was filed September 28, 1908, when it should have been filed by a nunc pro tunc order as of the date when it was presented to the trial judge. The rule is that, if a bill of exceptions is presented to the trial judge at such time that it can be filed within the time provided by the order of the court, the party will not be prejudiced by the neglect or delay of the judge to sign the bill until after the time fixed for that purpose has expired. If the date of presentation appears on the bill when it is signed and sealed, it can be filed nunc pro tunc as of the date of such presentation. Hall v. Royal Neighbors, 231 Ill. 185, 83 N. E. 145;Underwood v. Hossack, 40 Ill. 98; Evans v. Fisher, 5 Gilm. 453; Goodrich v. Cook, 81 Ill. 41. A bill of exceptions purports to be signed at the time the exception is taken in the course of the trial, whether it is presented then or afterwards, but, if it is presented within the time as extended by the court and that fact is shown on the bill, it may be afterwards filed as of that date within a reasonable time after it is actually signed. Hall v. Royal Neighbors, supra. Where a bill of exceptions is actually signed and filed 10 days after the trial, it is not necessary to render it effective that it should be entered and filed nunc pro tunc as of the date of the trial. Hunnicutt v. Peyton, 102 U. S. 333, 26 L. Ed. 113. The court said in the case just cited that, while the bill might be signed as of the date of the judgment, the giving of the true date would not destroy it; that ‘the reason why it is required that bills shall be presented for signature during the term is that the rulings made may be fresh in the memory. Are they any more fresh in his memory when he antedates the bill or orders it to be filed as of the date of the trial than when he gives to the signature and filing their true date? We cannot doubt that in a multitude of cases bills of exception have been signed after judgment and filed without any order that the signature and filing be entered nunc pro tunc, but, when the true time of the signature appeared, having been treated as sufficient whenever they have shown that the exceptions were taken during the trial.’ While it is true that this reasoning was applied in a case where the bill of exceptions was signed during the term, it applies with equal force where the bill of exceptions is actually presented to the judge within the time provided by the order of court, for it is conceded that, under the authorities, having been so presented it could be filed, after it was signed and sealed, as of the date when it was so presented, the same as a bill of exceptions signed and sealed during the term when the trial was had could be signed and sealed during the term and filed as of the date of the trial. As a matter of proper practice the judge should have dated it, after signing, as of the date when it was presented, and an order should have been procured filing it as of that date. At the most, however, the failure to do this was only an irregularity, and does not render the bill of exceptions void. Railway Conductors' Benefit Ass'n v. Leonard, 166 Ill. 154, 46 N. E. 756. The motion to strike the bill of exceptions will be denied.

It is insisted that there was no breach of the bond upon which this suit was brought. It was given pursuant to the order of the United States District Court, which, after reciting that the appointment of a receiver was necessary for the preservation of the estate, provided that the petitioning creditors file a bond in the sum of $5,000, as provided by statute, before said receiver should take possession under the appointment. The condition of the bond given was that, if the receiver was appointed and seized the property, the said T. E. Hill Company should be indemnified ‘for such damages as it shall sustain in the event such seizure shall prove to have been wrongfully obtained,’ etc. It is provided by the national bankruptcy act July 1, 1898, c. 541, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), in ...