Joyce v. Harding, 208 Ill. 77 (1904)

Feb. 17, 1904 · Illinois Supreme Court

208 Ill. 77

Walter M. Joyce v. George F. Harding et al.

Opinion filed February 17, 1904.

Appeals and errors—alleged error cannot be shown by affidavit in Supreme Court. Death of one of the complainants in a bill in chancery before the entry of the decree dismissing the bill, which fact is not shown by the record in that court, cannot be shown in the Supreme Court by affidavit as ground for reversal.

Writ of Error to the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.

Thomas B. Lantry, for plaintiff in error.

Charles B. McCoy, and George F. Harding, for defendants in error.

Mr. Justice Scott

delivered the opinion of the court:

This writ of error presents for our review a decree of the circuit court of Cook county, entered on March 3, 1900, dismissing a bill in chancery for want of equity and awarding costs against complainants. Several errors are assigned. The only one relied upon is based on the statement that Michael Smith, one of the complainants, died prior to the date of the entry of the decree in the circuit court. This fact does not appear by the record of that court. It is shown by an affidavit filed in this court. Plaintiff in error should have applied to the circuit court for the relief he seeks. (Life Association of America v. Fassett, 102 Ill. 315; Claflin v. Dunne, 129 id. 241.) Attention is called to the fact that these cases cited were both suits at law. The rule in equity must be the same. This is a court of review. We cannot consider affidavits filed in this court for the purpose of determining whether or not some fact exists which will show that the court below erred.

The decree of the circuit court will be affirmed.

Decree affirmed.