Bulger v. Hoffman, 45 Ill. 352 (1867)

Sept. 1867 · Illinois Supreme Court

45 Ill. 352

Edward Bulger et al. v. Theodore Hoffman.

Bill of exceptions — when necessary. Where an appeal from an inferior court, to the Circuit Court of Cook county, was dismissed in the latter court, it will be presumed, in the absence of a bill of exceptions preserving the ground of dismissal, that it was for non-compliance with some proper order or rule of the court.

Appeal from the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.

This was an action of forcible detainer, by Hoffman against Bulger and Walsh, commenced before a justice of the peace in Cook county, and on appeal to the Circuit Court was dismissed. The cause was brought to this court, and the order for dismissal assigned for error.

Mr. J. S. Page, for the appellant.

Messrs. Adams & Nissen, for the appellee.

Mr. Chief Justice Breese

delivered the opinion of the Court:

There is no bill of exceptions appearing in this record, and, in its absence, we must presume the appeal was dismissed for non-compliance with some proper rule or order of the court. It is impossible for this court, on what appears, to say why the appeal was dismissed. Appellant should have preserved the point by a bill of exceptions. The act of the legislature (§ 7, of Laws 1857), applies, in terms, to appeals from an inferior court, and authorizes their dismissal if an affidavit of merits be not filed before the expiration of the rule to plead, as in other cases.

We must presume such a rule was entered, which was not complied with.

The judgment is affirmed.

Judgment affirmed.