Wegienska v. Studebaker Bros. Manufacturing Co. , 235 Ill. 296 ( 1908 )

Mr. Justice Scott

delivered the opinion of the court:

• On August 22, 1902, Vincent Wegienska, the appellant, by his next friend, brought an action on the case in the circuit court of Cook county against the Studebaker Bros. Manufacturing Company, the appellee, to recover damages for personal injuries alleged to have resulted from the negligence of appellee while he was in its employ at its plant at South Bend, Indiana. To the declaration appellee filed the general issue, and a trial resulted in a verdict and judg-^ ment for the sum of $3500 in favor of the appellant, from which an appeal was prosecuted by appellee to the Appellate Court for the First District. There the cause was assigned to the branch court, where the judgment of the circuit court was reversed by a divided court, one of the justices dissenting. The cause was not remanded. A finding of facts adverse to Wegienska, the present appellant, was incorporated by that court in its judgment, and to review that judgment he has prosecuted an appeal to this court.

It is urged that the judgment of the Branch Appellate Court should be reversed for the following reasons: (I) The assignments of error were not broad enough to warrant a judgment of reversal; (2) the transcript of the record filed in the Appellate Court was incomplete, in that it appeared from the clerk’s certificate thereto attached that the transcript did not contain a. certain petition which had been filed in the cause prior to the time when the jury was empaneled; (3) the original bill of exceptions, instead of a copy thereof, was erroneously included in the transcript of the record, because the stipulation of the parties in reference to so doing was not properly evidenced; and (4) the prayer for an appeal and the order allowing the appeal were not made a matter of record in the manner required by law.-

Upon leave obtained, the appellee in this court has filed here a certified copy of the brief and argument which We-gienska filed in the Branch Appellate Court. It appears therefrom that none of the points above enumerated were raised or considered in the Branch Appellate Court, but,. on the contrary, that Wegienska, when in that court, by his brief and argument submitted the cause for determination upon its merits. Under these circumstances he will not be permitted to urge these objections in this court. National Bank y. LeMoyne, 127 Ill. 253; Lake Shore and Michigan Southern Railway Co. v. Hessions, 150 id. 546; Ennesser v. Hudek, 169 id. 494; Illinois Central Railroad Co. v. Jennings, 229 i d. 608.

It is also contended that the finding of facts made by the Branch Appellate Court is against the manifest weight of the evidence, and we are asked to review the facts because the justices of that court were divided in opinion. This we are without p'ower to do. Hackett v. Chicago City Railway Co. (ante, p. 116.)

The judgment of the Branch Appellate Court will be affirmed.

T , . ^ , Judgment affirmed.