Parker v. Village of LaGrange, 167 Ill. 623 (1897)

Oct. 12, 1897 · Illinois Supreme Court

167 Ill. 623

H. B. Parker v. The Village of LaGrange.

Announced orally at Springfield October 12, 1897.

1. Practice—when bill of exceptions, signed by non-presiding judge, uAU be stricken from files. A bill of exceptions signed by a judge who was neither the judge who presided at the trial nor the regular judge of the court in which the case was tried will be stricken from the files in the Supreme Court, on motion.

2. Same—when motion to affirm will be denied, though bill of exceptions is stricken from files. Although the bill of exceptions has been stricken from the files the Supreme Court will deny a motion to affirm the judgment below where there are errors assigned not depending entirely upon the bill of exceptions.

Motion by appellee to strike bill of exceptions from record and to affirm judgment below.

W. E. Thorne, and T. Parker Berry, for appellant.

Jesse E. Roberts, for appellee.

Mr. Justice Wilkin

announced the opinion of the court:

This is an appeal from the county court of Cook county. The judgment or decree was rendered in that court and an appeal granted and a certain time allowed in which to file the bill of exceptions. The judge who tried the case was a foreign judge—that is, he was not the county judge of Cook county. The bill of exceptions was not presented to him. It is not claimed that it was presented to him within the time required, but counsel for the appellant presented the bill of exceptions to Judge Wheatley, of another county, who happened to be in Cook county holding the county court at the time, and it is insisted that the presentation of the bill of exceptions to the judge who was then holding the court was a sufficient compliance with the order, and that it was therefore presented within the required time. We cannot concur in that view. The judge who tried the case alone could sign the bill of exceptions, and the presiding judge at the time the bill of exceptions was presented to him was neither the trial judge nor the judge of the county court of Cook county. The bill of exceptions not having been presented within the time required by the order of the county court, the motion to strike it from the record will be allowed.

With this motion there is also a motion to affirm the judgment below, but errors are assigned here not depending entirely upon the bill of exceptions, and that motion will be denied.

Motion to strike from record alloioed.