O'Donnell v. Quinn, 100 Ill. App. 5 (1902)

Jan. 24, 1902 · Illinois Appellate Court

100 Ill. App. 5

Thomas O’Donnell et al. v. Garrett Quinn.

1. Bill of Exceptions—Is but the Pleading of the Party Filing it. —A bill of exceptions is but the pleading of the party filing it, signed and sealed by the trial judge, as the means of establishing its truth.

2. Same—Effect of Stating the Judgment in.—The fact that the trial judge recites in the bill of exceptions what the judgment in the case was, does not make such recital a judgment in the legal sense of the term.

3. Appellate Court Practice—W/tere There is No Judgment of Record in the Court Below. —Where the only evidence of a judgment in the court below, is a recital in the bill of exceptions, of what judgment was entered at the close of the evidence, the Appellate Court is without jurisdiction, for the reason that a transcript of a final judgment, prayer and order of appeal bond, and its approval, are necessary to give the Appellate Court jurisdiction even to dismiss an appeal.

4. Jurisdiction—Not to be Conferred upon the Appellate Court by Filing a Transcript of a Bill of Exceptions.—Jurisdiction of a cause can not be conferred upon the Appellate Court by merely filing a transcript of a bill of exceptions and an appeal bond, and assigning errors thereon.

Assumpsit, on a promissory note. Appeal from the City Court of Aurora; the Hon. Russell P. Goodwin, Judge, presiding.

Heard in this court at the October terra, 1901.

Case stricken from the docket.

Opinion filed January 24, 1902.

J. J. O’Connor, attorney for appellants.

James F. Galvin and Edward M. Mangan, attorneys for appellee.

Mr. Presiding Justice Dibell

delivered the opinion of the court.

The so-called “ record ” filed in this case contains a certified copy of a bill of exceptions and an appeal bond. Upon this appellants have assigned errors. There is no record here showing the proceedings and judgment of the court below. It is true the bill of exceptions states what judgment the court entered at the close of the proofs. The bill of exceptions is but the pleading of the party filing it, signed and sealed by the trial judge, as the means of establishing its truth. This paper filed in the cause does not take the place of the record the law requires the clerk to keep upon record books, showing the various steps taken in the cause and the final judgment. If the attorney procures the judge to state in the bill of exceptions what the judgment was, that recital is not a judgment, it is not written by the clerk or spread of record, it does not give a lien upon real estate and no execution could issue upon it. The clerk has certified this bill of exceptions is a correct and true transcript, of all proceedings in this cause; If so, there is no judgment in this case in the court below, and nothing from which to appeal. If there is such a judgment section 72 of the practice act and rule 9 of this court require that a transcript thereof be filed here. We can not even dismiss this appeal; for a transcript of the final judgment, prayer and order of appeal, appeal bond and its approval, is necessary to give us jurisdiction for that purpose. Ho jurisdiction of a cause is conferred upon this court by filing merely a transcript of a bill of exceptions and an appeal bond, and assigning errors thereon. The order taking the cause for decision will be vacated, and cause stricken from the docket.