Bryan v. Brotherhood of American Yeomen, 169 Ill. App. 268 (1912)

March 21, 1912 · Illinois Appellate Court

169 Ill. App. 268

Nellie Bryan, Appellee, v. Brotherhood of American Yeomen, Appellant.

Appeals and errors—when transcript strik'n. A transcript filed on review purporting to contain a bill of exceptions will be eliminated from the record upon a correct transcript being filed which by the certificate of the clerk shows that the bill of exceptions contained in the original transcript was never, in fact, filed.

Assumpsit. Appeal from the City Court of Granite City; the Hon. James E. Dunnegan, Judge, presiding.

Heard in this court at the October term, 1911.

Affirmed.

Opinion filed March 21, 1912.

Thomas Stallings, for appellant; E. C. Corry, of counsel.

M. R. and D. J. Sullivan, for appellee.

Mr. Justice Shirley

delivered the opinion of the court.

Upon motion of appellee and over the objection of appellant, leave was given her to file in this court a corrected transcript of the record of the trial court. The motion for such leave was supported by the affidavit of the clerk of the trial court to the effect that the purported bill of exceptions attached to the record had never been filed in his office nor deposited as part of the files; that his certificate contained a correct statement if attached to the correct copy of the records and proceedings of said cause in his office, but that the said bill of exceptions included in the original transcript of the record filed in this court, was placed therein without his knowledge or consent, and that at the time he signed the certificate to the record it was not attached to the said purported bill of exceptions. The affidavit further states that after he certified to the transcript of the record which did not contain the bill of exceptions the latter without his knowledge or consent was placed in the transcript of the record and then filed in this court, and that the same is not a true and correct copy of the transcript of the record in said cause in the trial court. The affidavit did not impeach the certificate of the clerk attached to the original transcript, and the motion for. leave to file the corrected transcript was properly allowed.

The corrected transcript of the record filed in pursuance of such leave contains no bill of exceptions, and the certificate of the clerk thereto recites that no bill of exceptions was ever filed or deposited or left in his office for filing. No errors are assigned on the record proper, but only such as are based upon matters contained in the original transcript which is eliminated by the corrected transcript filed.

In this state of the record there is no question before this court for review and the judgment of the City Court of Granite City is affirmed. Jackson v. Bateman, 180 Ill. 359; Gillespie v. The People, 176 id. 238; Nester v. Carney Bros. Co., 98 Ill. App. 630; Chicago Tire and Spring Co. v. Grunow, 88 Ill. App. 360.

Affirmed.