61 Ill. 470 | Ill. | 1871
The record, shows that this suit was instituted in the Superior Court, and after issue joined, that the parties stipulated in writing to refer the same to B. D. Magruder, “ to hear the evidence and try and determine the cause, and that judgment be entered on his finding as on the finding of the court.”
Either party was to have the right to move for a new trial, or to appeal, as in ordinary cases.
The judgment recites that Magruder found the issues for the plaintiffs, and assessed their damages against the defendant, at a certain sum, and the court thereupon rendered judgment.
The record shows conclusively that the court heard no evidence; that there was no trial in court, and that the judgment was rendered upon the mere report of a gross amount by the referee.
A paper, having the form of a bill of exceptions, is signed by the judge, and countersigned by Magruder, to give it validity. _ a
It is, however, absolutely certain, from the entire record, that thefii was no trial by the court, and no evidence heard; and we Can not review testimony taken in such manner. The refereé Was not even sworn, nor Avere the Avitness.es. The solemnities under Avhich testimony should be taken were entirely disregarded.
There was iio proper submission to this referee, which Would authorize the court to enter up judgment upon his report,
The court had no jurisdiction to render the judgment. There was no submission, according to the statute. That requires a submission to three persons, to be named in the order. The court could only render á judgment when the submission is in pursuance of the statute. In other cases, the parties must be left to their remedies at common law. Low v. Nolte, 15 Ill. 368.
There was no confession of judgment, but a mere pretense of a trial, in violation of all the rules of laAV.
We can not review evidence taken as this was, and an affirmance of the judgment, under the circumstances, Avould be wrong. It is, therefore, reversed and the cause remanded.
Judgment reversed. '