City of Jacksonville v. Cherry, 39 Ill. App. 617 (1891)

June 12, 1891 · Illinois Appellate Court

39 Ill. App. 617

The City of Jacksonville v. John Cherry, Jr.

Practice—Pxeeptions—Preservation of.

1. Unless an exception is preserved by embodying it in a bill of exceptions, no ruling, however improper, that does not relate to the pleadings, or appear on the face of the judgment, can be reviewed in an Appellate Court.

2. A recital inserted by the clerk in the record immediately following the judgment, to the effect that an exception was taken thereto, can not be regarded as a part of the record.

[Opinion filed June 12, 1891.]

Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.

Mr. Richard Yates, for appellant.

Messrs. George W. Smith and Oscar A. DeLeuw, for appellee.

Per Curiam.

This was an action of assumpsit for money had and received, which was tried by the court without a jury and resulted in a finding and judgment for plaintiff for $574.15, to which, so far as the record shows, no exception was taken. It is true, as in Martin v. Foulke, 114 Ill. 206, and so many other reported cases, there is a recital inserted by the clerk in the record, immediately following the judgment, to the effect that such an exception was taken, but we can not regard that statement as a part of the record. If such an exception was taken, it could only have been made a part of the record by embodying it in the bill of exceptions, and we fail to find it there. The rule is inflexible, that without an exception so preserved, no ruling, however improper, that does not relate to the pleadings or appear on the face of the judgment, can be reviewed in an Appellate Court. Here the pleadings consisted of the common counts consolidated and the plea of non-assumpsit. It is not claimed that the judgment is erroneous on its face. We therefore can not consider the errors assigned, and the judgment must be affirmed.

Judgment affirmed.