Underwood v. Hossack, 40 Ill. 98 (1865)

April 1865 · Illinois Supreme Court

40 Ill. 98

Underwood v. Hossack.

(April Term, 1865.)

1. Bill of exceptions—time for filing the same. Where a party presents his hill of exceptions to the judge within the time prescribed for its being filed, he has comphed with the rule so far as it is in Ms power to do so, and he is not to be prejudiced because the judge may not actually sign the bEl until after the time so fixed has expired.

2. Same—presumption as to time of presentation to the judge. Where the judge has signed the bEl of exceptions, nothing appearing to the contrary, it will be presumed he would not have done so unless it had been presented to him in proper time.

8. Same—rebutting such presumption. The mere fact that the bill of exceptions was not filed, witMn the time prescribed, does not rebut that presumption ; though it may be rebutted by proof.

4: Mattebs of becobd — can only be made so in the court below. The Supreme Court cannot direct that to be made a matter of record which was not made so in the court below.

5. So, if a bEl of exceptions has not become a matter of record byi reason of not having been filed in proper time, no remedy can be afforded in tMs court.

Mr. D. P. Jones,

for the plaintiff in error, moved the court to make the bill of exceptions in this case a part of the record.

Per Curiam :

It appears from the record that three days were allowed within which the plaintiff in error might file his bill of exceptions*

The bill of exceptions is copied into the transcript, but appears not to have been actually filed until some time after the three days had elapsed. We have held that where a party presents his bill of exceptions to the judge within the time prescribed for its being filed, he has complied with the rule so far as it is in his power to do so, and he is not to be prejudiced because the judge may not actually sign the bill until after the time so fixed has expired. The judge having signed this bill of exceptions, we will presume that he would not have done so, unless it had been presented to him in proper time. The mere fact that it was not filed within the time, does not rebut that presumption; but the defendant is at liberty to do so by showing such not to have been the fact; until that is done, the bill of exceptions will be regarded as having been filed in good time. But if the case were different, as a matter of fact, we could not help the plaintiff under this motion, as this court cannot direct that to be made a matter of record which was not made so in the court below.

Motion denied.