Horn v. Neu & Gintz, 63 Ill. 539 (1872)

June 1872 · Illinois Supreme Court

63 Ill. 539

Charles Horn v. Neu & Gintz.

1. Motion—necessity of till of exceptions. In order that this court may review the action of the court below overruling a motion to set aside a default, the motion, with the affidavits in support thereof, must be preserved in the record by incorporation in a bill of exceptions, signed by the judge and properly certified by the clerk.

2. The insertion of such affidavits as a part of the record, by the clerk, does not entitle them to any consideration.

Appeal from the Circuit Court of Madison county.

Mr. George Abbott, for the appellant.

Messrs. Hay & ICnispel, for the appellees.

Mr. Justice Thornton

delivered the opinion of the Court:

The presumption is that the circuit court decided correctly, and rendered a proper judgment, unless the contrary is shown by the record.

There is no proof whatever in this record which we can regard or consider in determining the propriety of overruling the motion to set aside the default.

The affidavit of the appellant forms no part of the record. It could only be made such by incorporating it in a bill of exceptions, which must be signed by the judge and properly certified by the cleric. The insertion of the affidavit as a part of the record, by the clerk, does not entitle it to any consideration.

Motions of the character made in this case, and affidavits made in support of them, can be preserved alone by bill of exceptions, or this court will not examine them. Hatch v. Potter, 2 Gilm. 725 ; Hartford Fire Ins. Co. v. Vanduzor, 49 Ill. 489.

The judgment of the court below is affirmed.

Judgment affirmed.