Brettschneider v. The Fair, 70 Ill. App. 48 (1897)

March 29, 1897 · Illinois Appellate Court

70 Ill. App. 48

Ferdinand Brettschneider v. The Fair.

1. Bill of Exceptions—When Regarded as Incomplete.—Where many papers which are not in a bill of exceptions were offered in evidence. and seen by the court trying the case without a jury, and it is clear that the judge regarded them as part of the proofs, though there be no formal statement that they were received in evidence, the bill of exceptions will be treated as incomplete.

2. Judgments—Presumed to be Right.—A judgment is presumed to be right until it is shown to be wrong, and where, from what is before it, a court of appeal can not say that a judgment appealed from is wrong, it must be affirmed.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.

Heard in this court at the March term, 1897.

Affirmed.

Opinion filed March 29, 1897.

Rehearing denied.

Opinion on petition for rehearing filed April 15, 1897.

Pedrick & Dawson, attorneys for appellant.

Masterson & Haft, attorneys for appellee.

Mr. Justice Gary

delivered the opinion of the Court.

November 14, 189'6, judgment was entered for the appellee, defendant below, and leave given to the appellant to file a bill of exceptions within sixty days.

January 12, 1897, an order was entered thus: “On motion of defendant’s attorney it is ordered that the time for the defendant to file the bill of exceptions herein be and the same is hereby extended twenty days.”

That is nonsense, as the defendant wanted no bill of exceptions, but it does not follow that we are to read the order with the word plaintiff substituted for the word defendant. The order does not intimate that the plaintiff did come, though the case shows that he only had any cause to come.

But further than this, if the word plaintiff ivere substituted, then the order would appear to be one entered after the term at which the judgment was entered had expired— without notice to the adverse party—and therefore void.

The motion of the appellee to strike out the bill of exceptions which was filed February 1, 1897, is sustained; and with less regret because it does not contain all the evidence put in on the trial, and the merits seem to be with the appellee oh what evidence is in.

The judgment is affirmed.