94 Ill. App. 243 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The foregoing statement would seem sufficient of itself to dispose of this writ of error, without comment. Nevertheless we proceed to discuss the grounds for reversal relied on by counsel for plaintiff in error in their argument.
It is contended that the only proper judgment, if any, which the court could enter, is a judgment on the so-called verdict of a jury copied into the transcript, finding the issues for the plaintiff, etc. The only record showing the impaneling of a jury, is that impaneling a jury to assess damages, which record is quoted in the preceding statement, and the name “ C. C. Shine,”, signed as foreman to the paper purporting to be a verdict finding the issues for the plaintiff, is not the name of any juror impaneled. In the abstract of plaintiff in error the name of the supposed foreman is printed “ C. C. Shire,” but in the record it is “ C. C. Shine.” ¡Neither C. C. Shire nor C. C. Shine was impaneled as a juror.
It is assigned as error that the court erred in sustaining a demurrer to the defendant’s pleas. The pleas to which the affidavit of Cochrane was attached are the only pleas which we. could consider in passing on this objection, and neither of those pleas, nor the substance of them, is set out in the abstract; therefore we can not consider them. It is thoroughly settled that everything on which error is assigned must appear in the abstract. Knefel v. Swartz, 70 Ill. App. 371; Dickinson v. Gray, 72 Ib. 55; Gibler v. City of Mattoon, 167 Ill. 18; Staude v. Schumacher, 187 Ib. 187.
The sufficiency of the pleas is not even argued by counsel for plaintiff in error. It is merely suggested that the ruling on the demurrers is assigned as error.
In Banfill v. Twyman, 172 Ill. 123, the court say : “ Appellant has not, in his brief, pointed out any supposed error in admitting or rejecting evidence, and the assignments of error in that regard are abandoned.” In the present case no error has been pointed out in sustaining the demurrer to the pleas.
It is objected that the court was powerless to amend the order of October 2,1899, by the nunopro tuno order of June 29, 1899, so as to show that a default was taken October 2, 1899. The order of June 29th recites that the minute book of the court showed that October 2, 1899, there was a default taken against the defendant for want of a plea, and that the clerk inadvertently omitted to enter the order of default in the record. 'Such being the case, the court had ample power to amend the record of October 2d, so as to show the default. Coughran v. Gutcheus, 18 Ill. 390; Church v. English, 81 Ill. 442.
It is sufficient, however, to dispose of this objection, that no exception to the order amending the record has been preserved by bill of exceptions or in any other way. Ho exception to the order overruling the motion to vacate the judgment has been properly preserved. We cannot review that order in the absence of a bill of exceptions showing an exception to it. The mere recital by the clerk' that the defendant excepted, is not sufficient to entitle plaintiff in error to have the order reviewed. Schmidt v. Kelly, 9 Ill. App. 532.
But even though an exception to the order had been properly preserved it could not be set aside in the absence of evidence showing error in the overruling of the motion to vacate, .the presumption in such case being that the motion was properly overruled. Bulger v. Hoffman, 45 Ill. 352.
The affidavit in support of the motion can not be considered, because, not being preserved by bill of exceptions, it is improperly in the transcript. Horn v. Neu et al., 63 Ill. 539; Wright v. Hatchett, 12 Ill. App. 261. See also Knott v. Swannell, 91 Ill. 25, and Stern v. The People, 96 Ib. 475.
By reason of the views expressed and the conclusion arrived at, it is unnecessary to pass on the motion of defendant in error to strike from the files the supplemental and additional transcripts of the record, which motion was reserved till the hearing.
The judgment will be affirmed.
