Ferris v. Commercial National Bank , 158 Ill. 237 ( 1895 )

Mr. Justice Baker

delivered the opinion of the court:

A motion is made by defendant in error to strike the bill of exceptions from the record. It appears from a memorandum endorsed thereon by the trial judge, that the bill of exceptions was presented to him on the sixth day of February, 1894, which was within the time limited therefor by the order of the court. The fact that the judge failed to sign the same until the 23d day of February, and then signed and sealed it nunc pro tunc as of the sixth day of February, should not be permitted to work to the detriment of plaintiffs in error. The rule is, that where a party moves in apt time he shall not be permitted to be injured by the delay or neglect of the court to act, but will be protected in his rights by a nunc pro tunc order, or otherwise. Gray v. Brignordello, 1 Wall. 627.

This suit, which was upon a promissory note made by L. L. Ferris & Co., plaintiffs in error, was commenced in the circuit court of Cook county on the 12th day of January, 1894, and a declaration filed. On the same day the appearance of the defendants, waiving service of process and. consenting to an immediate trial, was entered by Abbott & Baker, attorneys at law. The record shows that a jury was impaneled “to'try the issues joined,” and that there were verdict and judgment in favor of the plaintiff and against the defendants. On January 13, after verdict, but before judgment, a special appearance of the defendants was entered by James A. Fullenwider, who filed a motion to set aside the verdict. Without any express order overruling said motion, judgment was, on" January 20, entered upon" the verdict nunc pro tunc as of January 12, and on the same day a motion was made, under the special appearance in the cause, to vacate the judgment, and also a motion to continue the hearing of said motion to set aside the judgment, both of which were denied. Again, on January 27, the defendants moved the court to set aside the order of January 20, and renewed their motions which had been on that day overruled, and in support thereof offered to read certain purported affidavits of the defendant Ferris and five other persons, taken in the dominion of Canada, and an affidavit of defendant’s counsel, Fullenwider, taken in this State; but the court refused to vacate its order of January 20, and overruled the said motions. To all of which said rulings by the court the defendants excepted, and sought in the Appellate Court a reversal thereof, but the Appellate Court affirmed the judgment below, and now, by writ of error, the record is brought here.

Plaintiffs in error contend that the trial court erred in rendering judgment pending, and without formally passing upon, their motion to set aside the verdict. This was a mere informality. The entry of judgment was, in effect, an overruling of the motion. McIntyre v. People, 38 Ill. 514; 12 Am. & Eng. Ency. of Law, p. 147i, note 2, and authorities cited.

We fail to discover any error in the rulings of the trial court. The material question raised by the various motions was whether or not Abbott & Baker were authorized to appear in behalf of the plaintiffs in error, and unless the latter had shown an absence of authority in Abbott & Baker to so appear, they had no ground on which to stand, for the court will take notice that Abbott & Baker are regularly licensed attorneys at law practicing at the bar of this State. The presumption that the appearance entered by them was regular, and that they were authorized to act as they did, was not overcome by proof. Ransom, v. Jones, 1 Scam. 291; Leslie v. Fischer, 62 Ill. 118; Martin v. Judd, 60 id. 78.

The purported affidavits taken in the dominion of Canada were void, and could not properly have been considered by the court. The notaries public before whom the papers were sworn to gave no certificates of their authority to administer oaths in the dominion of Canada. Rev. Stat. chap. 101, sec. 6; Smith v. Lyons, 80 Ill. 600.

The affidavit of James A. Fullenwider did not show a want of authority in Abbott & Baker to enter the appearance of plaintiffs in error. The statements contained therein touching this point were of matters of which, in the nature of things, he could have had no personal knowledge. Statements of fact, and not simply of opinion or belief, could alone avail.

Plaintiffs in error having thus failed to support their motions by proofs, there was therefore apparent to the trial court no reason why the said motions, or any of them, should be allowed.

The judgment of the Appellate Court affirming the judgment of the circuit court is affirmed.

Judgment affirmed.