Lowitz v. McKittrick, 215 Ill. App. 611 (1919)

Oct. 21, 1919 · Illinois Appellate Court

215 Ill. App. 611

E. Lowitz et al., partners, Appellees, v. M. E. McKittrick and I. McKittrick, Appellants.

Appeal and error, § 800 ^* —when motion and decision thereon must he presented in hill of exceptions. The action of the court upon a motion can only be preserved for review when the motion and the decision thereon are presented in a bill of exceptions, and this rule applies notwithstanding the fact that exceptions do not have to be preserved.

Appeal from the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1919.

Affirmed.

Opinion filed October 21, 1919.

Whitaker, Ward & Pugh, for appellants.

George W. Kenney, for appellees.

* See Illinois Notes Digest, Vols, XI tp XV, and Cumulative Quarterly, same topic anfl section number,

Mr. Justice Eldredge

delivered the opinion of the court.

Appellees sued appellant in an action of assumpsit in the County Court of Sangamon county. The declaration consists of the common counts with a copy of the count and affidavit of claim attached thereto. Appellants entered a limited appearance for the purpose of filing a plea to the jurisdiction of the court. The plea to the jurisdiction was stricken from the files on motion of appellees and a default judgment was entered against appellants for $240.10. Appellants now seek to have the action of the court in striking said plea from the files and entering judgment reviewed by this appeal. The entire hill of exceptions is as follows:

“Bill op Exceptions.

“Be it remembered, that afterwards, to-wit, on the 18th day of March A. D. 1919, there Was filed in the office of the Clerk of the County Court, in and for the County of Sangamon and State of Illinois, a bill of exceptions, in the case of E. Lowitz, et al. partners etc., plaintiff, against M. E. McKittrick and I.' McKittrick, defendants, which said bill of exceptions is a,s follows, to-wit:

Bill op Exceptions.

“Be it remembered, that on the 5th day of February, A. D. 1919, the plaintiff, by counsel, made a motion to strike defendants’ plea to the jurisdiction of the County Court of Sangamon County, State of Illinois, in the case of E. Lowitz, et ah, partners, etc., vs.

M. E. McKittrick and I. McKittrick, from the files, said motion being oral, and was on the following ground, to-wit:—

“General motion to strike plea from files on account of it not having attached proper affidavit of merit, and for judgment by default, because the appearance of defendants is general and not limited.

County of Sangamon „„

State of Illinois.

In the County Court,

To the February Term,

A. D. 1919.

E. Lowitz, et al, partners, etc.,

vs.

Assumpsit.

M. E. McKittrick and I. McKittrick.

“Forasmuch, therefore, as the matters and things above set forth do not fully appear of record, the defendants tender this, their bill of exceptions, and pray that the same may be signed and sealed by the judge of this court pursuant to the statute in such case made and provided, which is done accordingly this 18th day of March A. D. 1919.

J. B. Weaver,

Presiding Judge.”

There is nothing in this bill of exceptions showing any decision of the court upon the motion. In the case of Gaynor v. Hibernia Sav. Bank, 166 Ill. 577, it was said: “The only error alleged is that the court erred in striking the plea from the files, and it has been repeatedly held that such action of the court cannot be considered unless the motion, decision and an exception thereto are presented in a bill of exceptions, so that the error, if any, may appear from the record.” The cases announcing this rule are so numerous that any further citation of them is unnecessary. While exceptions do not now have to be preserved, yet the rule remains that the action of the court upon a motion can only be preserved for review when the motion and the decision thereon are presented in a bill of exceptions.

The judgment of the Circuit Court is affirmed.

Affirmed.