United States Life Ins. Co. v. Shattuck

• Decision Date: 11 October 1895
• Citation: 159 Ill. 610,43 N.E. 389
• Parties: UNITED STATES LIFE INS. CO. v. SHATTUCK.
• Court: Illinois Supreme Court

159 Ill. 610

43 N.E. 389

UNITED STATES LIFE INS. CO.

v.SHATTUCK.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Action by Sophia J. Shattuck against the United States Life Insurance Company. From a judgment of the appellate court (57 Ill. App. 382) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Seth F. Crews, for appellant.

Weigley, Bulkley, Gray & Eastman, for appellee.

BAKER, J.

On the 17th day of March, 1894, it being one of the days of the March term, 1894, of the superior court of Cook county, the court rendered judgment on the verdict of a jury in favor of Sophia J. Shattuck, the appellee, and against the United States Life Insurance Company of the City of New York, appellant, for $11,250 damages, and for costs. The defendant corporation prayed an appeal to the appellate court for the First district, which was on the same day allowed, upon its giving bond as required by the order of the court, and said order further required ‘its bill of exceptions to be filed within sixty days' from that date. The appeal bond was duly filed and approved, but under the order the time for filing the bill of exceptions, unless lawfully extended, expired on May 16, 1894. It appears from the transcript of the record that was filed in the appellate court on October 3, 1894, that no order was entered of record in the superior court extending the time for filing said bill of exceptions from the 16th day of May, 1894, to the 28th day of May, 1894. There does, however, appear in the record an order made on May 28, 1894,-one of the days of the May term of court,-extending the time for filing said bill of exceptions ‘for the space of twenty days, to wit, until the 15th day of June.’ It also appears that on the 13th day of June, 1894, the judge of the superior court, who had presided at the trial, and at the time of the rendition of the judgment, signed and sealed a bill of exceptions; that the same was on said day filed in the office of the clerk of the superior court; and that it was afterwards incorporated in the transcript of the record as certified by said clerk.

After the filing on October 3, 1894, of the record in the appellate court, the appellant moved to strike from the transcript the purported bill of exceptions, for the reason that the same was not presented, signed, or filed within the time limited by the court, and was not properly a part of the record. Afterwards, on October 16, 1894, there was filed in the appellate court a supplemental record, from which it appears that on October 11, 1894, at the October term, 1894, of the superior court of Cook county, certain proceedings were had before the Honorable John Barton Payne, one of the judges of said superior court, in the matter of the motion of the here appellant corporation to direct the clerk of the court to record upon the records of the court the order for the extension of time for filing bill of exceptions theretofore, and on May 15, 1894, directed to be entered, but that the court overruled the motion, and refused an order directiong the clerk as asked in the motion, and that appellant thereupon took a supplemental bill of exceptions. It appears therefrom that on September 26, 1894, the clerk found among the files in another case a certain paper, with the file mark of the clerk indorsed thereon. Said paper was as follows: ‘State of Illinois, County of Cook-ss.: In the Superior Court of Cook county. To the March Term, A. D. 1894. Sophia J. Shattuck v. U. S. Life Ins. Co. Leave to extend time for filing bill of exceptions in the above-entitled cause extended from sixty days, as granted, to eighty days, on motion of the defendant's attorney.’ Upon this paper was the following notation or memorandum: ‘Enter.-J. B. P.-May 15, '95.’ And indorsed upon it was a file-mark in the handwriting of the clerk, as follows: ‘Filed May 17, 1894.-S. D. Griffin, Clerk.’ It also appears the words and figures, ‘Enter.-J. B. P.-May 15, '95,’ were in the handwriting of the Hon. John Barton Payne, one of the judges of the superior court, and who also was the judge that had presided at the trial of the cause and at the rendition of the judgment appealed from, and who, moreover, had signed and sealed the original bill of exceptions in the cause; and it further appears that said words and figures were written on said paper by Judge Payne while he was sitting and presiding as judge in the criminal court of Cook county on said 15th day of May, 1894.

Upon the filing of the supplemental record, appellant, by leave of court, made certain assignments of error thereon, the material one of which was this: ‘The court erred in refusing to grant the motion of defendant to direct the clerk to spread upon the records of the court the order directed to be entered May 15, 1894.’ Appellant, also, on October 29, 1894, entered a cross motion in the appellate court that said court ‘do make an order amending the record herein, showing by said order that a proper order was made in the court below on May 15, 1894, being one of the days of the May term of said court, extending the time for filing the bill of exceptions for twenty days from that date.’ Thereafter, the cause having been reached on the call of the docket, it was taken for consideration by the appellate court, and on a subsequent day, by the judgment of the court, the bill of exceptions in the transcript of the record filed on October 3, 1894, was stricken out of the record as not being properly a part thereof, and the judgment of the superior court was affirmed.

The rule that prevails in this state, under the construction that has been placed upon our statutes, is that when the time for presenting and filing a bill of exceptions is, by the order of the court, extended beyond the term at which the judgment is rendered, then the court, as a court, may at a subsequent term, and within the time limited by the order of the prior term, grant further extension of time for presenting and filing such bill of exceptions; but since fixing the time within which a bill of exceptions may be presented and filed, and granting extensions of time within which it may be presented and filed, are judicial acts, they can only be performed in term time, and by the judge while presiding in the court and exercising the judicial functions of the court. Hake v. Strubel, 121 Ill. 321, 12 N. E. 676; Hawes v. People, 129 Ill, 123, 2 N. E. 777; Village of Marseilles v. Howland, 136 Ill. 81, 26 N. E. 495. And see Pardridge v. Morgenthau, 157 Ill. 395, 42 N. E. 74. The supplemental bill of exceptions shows that the supposed order of May 15, 1894, if made by Judge Payne, was made by him, not while presiding as judge of the superior court of Cook county, or one of its branches, but while actually sitting and presiding as judge in the criminal court...