Davis Paint Manufacturing Co. v. Metzger Linseed Oil Co. , 188 Ill. 295 ( 1900 )

Mr. Justice Magruder

delivered the opinion of the court:

The final decree, rendered by the circuit court in this case, was so rendered on June 29, 1899, and this decree, rendered on June 29, 1899, is the decree which has been affirmed by the judgment of the Appellate Court. There is no certificate of evidence in the record, and no evidence appears to have been taken in the cause. The decree recites no finding of facts to support it. The material averments of the bill are either denied by the answer, or neither admitted nor denied therein. In such case, the material averments must be supported by proof.

It devolves upon the party, in whose favor a decree in chancery is rendered, to preserve the evidence that will sustain the decree, or the decree itself must find that facts were proven which will sustain it. (Axtell v. Pulsifer, 155 Ill. 141). The rule is well settled that, where a material averment in a bill is neither admitted nor denied by the answer, it must be supported by proof. (Wilson v. Augur, 176 Ill. 561; Llewellin v. Dingee, 165 id. 26; Litch v. Clinch, 136 id. 410). In proceedings in chancery, the party seeking to sustain a decree in his favor must preserve the evidence, upon which it is based, in the record in some proper form; and when this is not done, no presumption will be entertained that evidence sufficient to sustain the decree, not appearing in the record, was heard. (Jackson v. Sackett, 146 Ill. 646). In chancery it will not be presumed that any other proof was made than what appears in the record, and if the proof thus appearing does not sustain the decree, it will be reversed. (Ryan v. Sanford, 133 Ill. 291). Where, as here, no facts are found in the decree, and there is no certificate of evidence, there is nothing in the record to sustain the decree, and, hence, there is error, which requires a reversal of the decree. (Glos v. Beckman, 168 Ill. 74).

For the reasons above stated, the judgment of the Appellate Court and the decree of the circuit court are reversed, and the cause is remanded to the circuit court with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.