49 Ill. App. 310 | Ill. App. Ct. | 1893
Opinion of the Court,
It is asserted, in appellee’s brief, that no exception has been preserved by appellant to any ruling of the city court, except as to the rendition of the judgment. We have examined the record carefully and have found this statement to be absolutely true. There is no exception on the part of the appellant to any ruling of the court in admitting or excluding evidence, or in giving or refusing instructions. FTeither is there any properly preserved exception to the ruling of the court in disallowing the motion for a new trial.
It has been repeatedly held that the motion for a new trial and the exception to the action of the court in overruling the same must be made to appear by bill of exceptions and that the statement thereof by the clerk in the judgment order is utterly valueless. James v. Dexter et al., 113 Ill. 654; Graham et al. v. The People, 115 Id. 566; The Firemen’s Insurance Company v. Peck, 126 Id. 493; Steffy v. The People, 130 Id. 98.
The only semblance of an exception on the part of appellant to be found in the bill of exceptions is as follows:
“ But the court overruled the motion (for a new trial) and rendered a judgment in accordance with the finding of the jury, to the rendition of which judgment the defendant then and there excepted.”
Dow the order overruling a motion for. a new trial and the rendition of the judgment on the verdict are separate acts. The fact that the two orders are in juxtaposition does not make them one and the same. FTo motion for a new trial may be made, and yet a valid judgment may be rendered. If a party to a suit is displeased because his motion for a new trial is overruled h'e should except to the decision of the court in overruling his motion and not to the rendition of the judgment. The bill of exceptions is the pleading of the party alleging the exception, and, if hable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to be construed most strongly against the party preparing it. [Nothing is to be taken by intendment. Ií a litigant allege error he must not only make error'to appear, but he must show himself in a position to take advantage of the fact. Rogers v. Hall, 3 Scam. 5; Lee et al. v. Town of Mound Station, 118 Ill. 304; Garrity v. The Hamburger Co., 136 Id. 499; Monroe v. Snow et al., 33 Ill. App. 230; Alley v. Limbert, 35 Id. 592.
In order to meet this unfortunate condition of the record, counsel for appellant boldly advance some novel propositions. They affirm that “ an exception taken to the overruling of a motion for a new trial and the rendition of a judgment, preserves all of the questions set forth in the motion for a new trial.” Such is not the fact in this case. As we have seen, no exception was taken to the action of the court in overruling the motion for a new trial. Such is not the law. The reasons filed in support of the motion for a new trial may allege error in admitting or excluding evidence and in giving or refusing instructions, and yet such error could not be considered by an appellate court, unless the record shows exceptions to the ruling of the trial court at the time when the evidence was admitted or excluded, or when the instructions were given or refused. Hill v. Ward, 2 Gilm. 285; Dickhut v. Durrell, 11 Ill. 72; I. C. R. R. Co. v. Modglin, 85 Ill. 481; C. P. & St. L. Ry. Co. v. Wolf et al., 131 Ill. 360.
Another novel proposition is set forth in the following words: “ For this course on the part of the appellee the judgment should bereversed.” The obnoxious course referred to consists in the citation of authorities to show that inasmuch as the bill of exceptions is practically a bill without exceptions, the judgment of the court below should be affirmed. In view of the fact that we agree with appellee on this point, we deem it hardly proper to punish him by reversing the judgment. The only question before us concerns the sufficiency of the judgment. Ho defect in the form of the judgment has been pointed out, nor has it been contended that in the absence of error the City Court could have done otherwise than render judgment on the verdict. The judg„ ment is affirmed.