Madsen v. Paul, 54 Ill. App. 621 (1894)

April 19, 1894 · Illinois Appellate Court

54 Ill. App. 621

Christian Madsen v. William O. Paul.

1. Appellate Court Practice—Defective Bill of Exceptions.—The court is not bound to examine an appeal where the bill of exceptions is defective. It may, however, examine the abstract and record to see if sufficient reason exists for interfering with the conclusion arrived at by the jury and trial judge.

Memorandum.—Assumpsit. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.

Heard in this court at the March term, 1894,

and affirmed.

Opinion filed April 19, 1894.

J. W. Merriam, attorney for appellant.

John C. Richberg, attorney for appellee.

Mr. Justice Waterman

delivered the opinion of the Court.

The bill of exceptions in this case is imperfectly made, and we might well decline to consider the facts therein set forth. 1STotwithstanding this we have examined the abstract and record, and see no sufficient reason for interfering with the conclusion arrived at by the jury and trial judge.

After the plaintiff’s claim became due there was a settlement, as the defendant testifies, of all matters relating to the real estate transaction out of which the plaintiff’s claim arose. Upon cross-examination the defendant admitted that this particular claim was not mentioned in such settlement. Such settlement was intended to be of all matters and was supposed by both parties to be full and complete.

Two juries have found in favor of appellee. The last jury was fairly instructed, and it is likely that a third trial would result as have the two already had.

The judgment of the Superior Court is therefore affirmed.

Mr. Justice Gary.

I think the bill of exceptions is so defective that the merits of this case are not open. I therefore concur in affirming.