Hall's Safe Co. v. Emmerson, 169 Ill. App. 156 (1912)

March 21, 1912 · Illinois Appellate Court

169 Ill. App. 156

The Hall’s Safe Company, for use, etc., Appellant, v. L. L. Emmerson et al., Appellees.

Appeals and errors—when questions not saved for review. In the absence of the record purporting by the certificate of the judge to contain all the evidence heard, questions involving rulings upon the evidence, upon the instructions and upon the sufficiency of the evidence to sustain the verdict are not saved for review.

Appeal from the County Court of Jefferson county; the Hon. A. D. Webb, Judge, presiding.

Heard in this court at the October term, 1911.

Affirmed.

Opinion filed March 21, 1912.

Arthur T. French and Charles H. Holt, for appellant.

G. Gale Gilbert, for appellees.

Mr. Justice McBride

delivered the opinion of the court.

In this case the errors assigned and argued by counsel for appellant are, that the court erred in admitting improper evidence on behalf of appellees, in excluding proper evidence offered by appellant, in giving instructions for appellees that were not based upon the evidence but upon incompetent evidence, and in the refusal to give instructions for appellant which fairly present to the jury the law applicable to the evidence tending to support his theory of the case; determination of which necessarily involves a consideration of the evidence in the case.

Counsel for appellees insists that there is no certificate of the judge showing that the record contains all of the evidence in the case, and for that reason the questions here presented cannot be determined by this court. We have examined the record and find that there is a certificate of the reporter incorporated in the record, that the foregoing is all of the evidence but there is no certificate of the judge to that effect; the certificate of the reporter cannot under the law be substituted for a certificate of the judge. It is necessary under the law that there should be embodied in the record a certificate of the judge that it contains all of the evidence in the case. In the case of Lingren v. Swartz, 49 Ill. App. 488, it is said by Judge Lacey: “It lacks entirely the certificate of the judge that the bill of exceptions contained all the evidence in the case. The certificate of the reporter cannot be substituted for that of the judge. In the absence of such a bill of exceptions as the law requires the presumptions are all in favor of the verdict and judgment, and this court will presume that the evidence was sufficient to support the verdict without reference to the instructions.” Herman v. North Chicago St. R. R. Co., 94 Ill. App. 465; Kalish v. City of Chicago, 219 Ill. 133.

We are of the opinion that the errors presented cannot under the law and the record of this case be considered by the court; and that the presumptions are in favor of the verdict and judgment rendered herein, and the judgment is affirmed.

Judgment affirmed.