Saunders v. McCollins, 5 Ill. 419, 4 Scam. 419 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 419, 4 Scam. 419

Edward E. Saunders v. John McCollins.

Appeal from Jo Daviess.

I. Record — affidavit, how made part of. Where an affidavit made upon a motion for a new trial is copied into'the record oí the cause, it does not become a part thereof. To make it such it should be incorporated into a bill of exceptions, which a party must always take, in order to present to the supreme court the evidence on which he relies in support of his motion. ^(a)

This cáusc was heard in the court below, at the March term, 1843, before the Hon. Thomas C. Browne and a jury. Verdict and judgment were rendered for the plaintiff, and the defendant appealed to this court.

Thompson’Campbell and E. B. Washburne, for the appellant.

Joseph B. Wells, for the appellee,

cited Vaire v. Delaval, 1 Term R. 11; Dana v. Tucker, 4 Johns. 487; 1 Brown 123; Forrester et al. v. Guard et al. Breese 44; 12 East 229; 1 Pick. 43; 6 Cowen 584; Wickersham vl The People, 1 Scam. [*420] 130; Guykowski v. The People, 1 Scam. 481-2; The People v. Jewett, 3 Wend. 321; 6 Wend, 389; 2 Scam. 55 ; 2 Scam. 490; Hill v. Hill, Maine 19, 423.

(a) Cases Citing Text. Motion to quash execution and evidence in support thereof, should be incorporated in bill of exceptions, that they may become part of record. Corey v. Russell, 3 Gilm. 366.

Judgment given in evidence does not become part of record unless copied into bill of exceptions. Petty v. Scott, 5 Gilm. 209.

Warrant of attorney to confess judgment, is not part of record unless made so by being included in bill of exceptions. Magher v. Howe, 12 Ill. 379, 381.

Instructions become part of record only by being included in bill of exceptions. Drew v. Beall, 62 Ill. 164, 166.

Motion challenging array of jurors is not part of record unless preserved in bill of exceptions. Earll v. People, 73 Ill. 329, 331.

'Treat, Justice,

delivered the opinion of the court: This was an action of trespass, brought by McCollins against Saunders. There was a trial, and a verdict found for the plaintiff for $75. The defendant made a motion for a new trial, which the court refused. A judgment was rendered - on the verdict. ^ The overruling of the motion for a new trial is assigned for error.

There is nothing in the record to sustain the assignment of error. No bill of exceptions was taken; consequently there is no evidence before us from which we can determine the merits or the motion. The clerk has copied into the transcript an affidavit in relation to the competency of one of the jurors who tried the case. This, however, does not make it a part of the record. The defendant, in order to have the decision of the circuit court reviewed in this court, ought to have tendered a bill of exceptions, and in that way preserved the evidence on which he relied to sustain the motion. This question is not a new one, but has frequently arisen and been decided in this court. Vanlandingham v. Fellows et al. 1 Scam. 233; McLaughlin v. Walsh, 3 Scam. 185; Troy v. Reilley, 3 Scam. 259; Cummins v. McKinney, ante 57.

The judgment of the circuit court must be affirmed' with costs.

Judgment affirmed. ,