West Chicago Street R. R. v. Becker, 57 Ill. App. 533 (1895)

Feb. 12, 1895 · Illinois Appellate Court

57 Ill. App. 533

West Chicago Street R. R. Co. v. Theodore Becker, for the use of, etc.

1. Presumptions—In the Absence of a Bill of Exceptions.—Where a bill of exceptions does not show the reason for dismissing a writ of certiorari, the Appellate Court will presume that the court below had a good reason for doing so.

Memorandum.—Certiorari. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Opinion filed February 12, 1895.

Edmund Furthmann, attorney for appellant.

Will F. Wanless and Chas. O. Knudson, attorneys for appellee.

Mb. Justioe Gaby

delivebbd the opinion of thf, Coubt.

April 21, 1894, the appellant filed a petition for a certiorari, to remove a cause in which judgment had been rendered against it from before a justice into the Superior Court, which was granted the same day. The affidavit verifying the petition was sworn to March 19, 1894. May 19, 1894, the record shows : “ On motion of plaintiff’s attorney, it is ordered that the writ of certiorari issued in said cause, be, and is hereby dismissed, at defendant’s costs, and that a procedendo do issue herein to the court below.”

The ground of the petition is that the appellant was summoned as a garnishee in an attachment suit commenced by the firm of Wanless & Knudson against Theodore Becker, to appear January 26, 1894; that January 25, 1894, it filed an answer denying all indebtedness; that the justice continued the case, first, to February 3d, then to February 6th, then to February 19,1894, and then entered judgment against the appellant for $200; that such last continuance was not for the purpose of taking any deposition.

Whether by this last continuance the justice lost jurisdiction, is a question which may be profitably studied with the aid of Harrison v. Chipp, 25 Ill. 575, Crichton v. Beebe, 7 Ill. App. 272, and People v. Jarrett, 7 Ill. App. 566, but which we need not decide. Whether trespass will lie for enforcing the judgment is not yet a subject of inquiry.

Why the court dismissed the' writ of certiorari does not appear on this record, for though there is a bill of exceptions, it is so useless that it is not abstracted, being merely that the appellant excepted to the action of the court, without "showing what was the ground of .such action. Such a bill merely shows that the appellant was dissatisfied. It is, therefore, to be presumed that the court had a good reason. Blair v. Ray, 103 Ill. 615; Chicago v. Porter, 124 Ill. 589; Chi. R. I. & P. Ry. v. Town of Calumet, 151 Ill. 512; Matson v. Lally, 37 Ill. App. 484; Chicago World Book Co. v. Brewer, 57 Ill. App. 526.

The judgment is affirmed.