Brockenbrough v. Dresser, 67 Ill. 225 (1873)

Jan. 1873 · Illinois Supreme Court

67 Ill. 225

John C. Brockenbrough v. Parker Dresser et al.

Chancery—evidence—how preserved. Where copies of judgments and executions affecting title to land in dispute are copied into the record of a chancery case, which are not exhibits filed with the bill, or any of the depositions, and there is in the record no certificate of evidence by the court, nor any statement of the facts proven in the decree, this court can not notice the same. The clerk’s certificate, that the record contains a “correct copy of all the papers on file, all of the orders of court and records used in evidence,” in such a case is of no avail.

Writ of Error to the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding.

Messrs. Hay, Greeks & Littler, for the plaintiff in error.

Messrs. Jokes & Gardher, for the defendants in error.

Mr. Chief Justice Lawrence

delivered the opinion of the Court:

We are obliged to affirm this decree without reference to the merits, upon the first point made by the appellee. The certified copies of the attachments, judgments and executions which we find set out in the record, are not properly there. They are not exhibits, filed with the bill, or any of the depositions, and there is' in the record no certificate of evidence by the court nor any statement of the facts proven in the decree. The clerk certifies that the record contains a “correct copy of all the papers on file, all of the orders of court and records used in evidence,” but his certificate is of no avail. This documentary evidence lies at the foundation of the case. The facts to be proven by it are not admitted in the answer of Pierce, whose title it was sought to take away, and the proof was therefore indispensable. This proof is not in the record in such shape that we can properly notice it, and we have no alternative but to affirm the decree. The objection is taken by counsel, and we can not disregard it.

The decree is affirmed.

Decree affirmed.