Wabash v. Peterson

• Decision Date: 22 January 1886
• Citation: 6 N.E. 412,115 Ill. 597
• Court: Illinois Supreme Court
• Parties: WABASH, ST. L. & P. RY. Co. v. PETERSON.

115 Ill. 597

6 N.E. 412

WABASH, ST. L. & P. RY. Co.

v.PETERSON.

Supreme Court of Illinois.

January 22, 1886.

Error to appellate court, Third district. Petition for rehearing filed at January term.

SCOTT, J.

A writ of error was sued out from the appellate court of the Third district to reverse a judgment which Maria Peterson had, at the November term, 1883, of the circuit court of Mason county, recovered against the Wabash, St. Louis & Pacific Railway Company. The writ was made returnable to the November term, 1884, of the appellate court. At that term of court defendant in error appeared, and pleaded a plea in bar of the writ. After the formal beginning, the plea continued:

‘On November 9, 1883, plaintiff in error prosecuted an appeal to this court from the identical judgment of the court below mentioned in the proceedings in this case, and assigned on the record the same errors assigned in this case; and said appeal, upon the errors therein assigned, came on to be heard in this court at the May term, 1884, * * * and such proceedings were had on said appeal that on the third day of July, 1884, it was considered by this court that neither in said record and proceedings, nor in the rendition of said decision of the court below, was there any error, and that said judgment be affirmed, notwithstanding the matters therein assigned for error, and that said appellee [therein] recover of appellant [therein] costs as by the record in said appeal case will now appear, which said judgment of this court is in full force, and not reversed. All of which defendant is ready to verify.’

A demurrer interposed to this plea was by the court overruled. Afterwards plaintiff in error replied- First, nul tiel record; and, second, by four special replications, in which, in substance, it was averred that the merits of the controversy between the parties were not heard and determined by the appellate court on the appeal, on account of the misprision, omission, and default of the clerk of the circuit court in this: that, in making up the transcript of the proceedings had in the circuit court to be submitted to the appellate court, such clerk failed and omitted to transcribe the bill of exceptions, which was a part of the record, into the transcript made, by reason whereof the record of the proceedings now presented to the court was not before the appellate court, and that such court could not and did not on such appeal decide upon and determine the errors...