Duncan v. Chandler, 5 Ill. App. 499 (1879)

Dec. 11, 1879 · Illinois Appellate Court

5 Ill. App. 499

Andrew J. Duncan v. Lemuel J. Chandler.

Practice—Finding of court must be excepted to.—Where a cause is tried by the court without a jury, the finding of the court cannot be questioned on appeal unless the record shows that exceptions were taken to the decision and a motion made for a new trial and overruled, and exceptions taken.

Appeal from the Circuit Court of McDonough county; the Hon. S. P. Shops, Judge, presiding.

Opinion filed December 11, 1879.

Mr. Wm. H. Neece and Mr. John Moshek, for appellant.

Mr. D. Gr. Tunnicliffe, for appellee.

Per Curiam.

This case was tried by the court below, by agreement of the parties, without the intervention of a jury. The court found for appellee, and gave a judgment in his favor.

From that judgment appellant took this appeal. While we might, on the merits of the case, be inclined to reverse the judgment, we are precluded from doing so from the fact that no exceptions were taken in the court below to the finding of the court, and no motion made for a new trial. In Parsons v. Evans, 17 Ill. 238, and in Sherman v. Skinner, 83 Ill. 584, the court held that where a cause is tried by the court by consent of parties without a jury, the finding of the court cannot be questioned on appeal unless the record shows that exceptions were taken to the decision of the court, or that a motion was made for a new trial and overruled, and the decision of the court excepted to.

Judgment affirmed.