Richter v. Chicago & Erie Railroad , 273 Ill. 625 ( 1916 )

Mr. Justice Duncan

delivered the opinion of the court :

Appellee, a brakeman in the service of the Chicago and Erie Railroad Company, appellant, brought this action in case in the circuit court of Cook county to recover damages against appellant for the loss- of his foot while employed by the company in uncoupling cars on one of its moving trains. He recovered a judgment for $1950 after motions for new trial and in arrest of judgment had been overruled by the court. Appellant prosecuted an appeal to the Appellate Court. The Appellate Court affirmed the judgment and granted a certificate of importance, and appellant has perfected its appeal to this court.

In the trial courf appellant was given sixty days from December 14, 1912, in which to file a bill of exceptions. The last day allowed for filing the bill of exceptions expired February 12, 1913. That day was Lincoln’s birthday and it was not Sunday. No bill of exceptions was filed or presented to the trial judge on or before that date and no order was made by the court on or before that date extending the time for filing the bill of exceptions. On February 13, 1913, appellant presented the bill of exceptions to the trial judge, and an order was made by the court, over the objections of appellee, extending the time for filing the bill of exceptions to March 1, 1913, and on February 28, 1913, the bill of exceptions was filed. On motion of appellee the Appellate Court struck the bill of exceptions from the record. The cause was then heard by that court on the errors assigned on the common law record. The only question presented to the Appellate Court on the common law record for consideration was- whether or not the trial court erred in overruling the motion in arrest of judgment.

The first error assigned by appellant in this court is that the Appellate Court erred in striking the bill of exceptions from the record. The rule in this State is that a bill of exceptions must be presented to the trial judge for signature during the term at which the cause is disposed of, or within such further time as shall be limited by the court by an order entered during that term. If the court shall be in session at any succeeding term before the expiration of the time granted, the court may, prior to the expiration of the time granted, and during such succeeding term, make another order extending the time within which the bill of exceptions may be filed; but if the term at which the cause was disposed of is adjourned and thereafter the period first fixed for filing the bill of exceptions expires without an order providing for an extension of time, the court, subsequent to the expiration of that period, is without jurisdiction to make an order extending the time within which to present the bill of exceptions. (Pieser v. Minkota Milling Co. 222 Ill. 139.). It is apparent that the court had no power to extend the time to file the appellant’s bill of exceptions unless the contention of the appellant that the time was extended by law to the 13th day of February, 1913, by reason of the fact that the 12th day of February was a legal holiday, can be sustained. Paragraph 11 of section 1, chapter 131, of the Revised Statutes of Illinois, provides that in counting the time within which any act provided by law is to be done, the first day shall be excluded and the last day shall be included unless the last day is Sunday, and then it also shall be excluded. That section, however, only applies when the last day of the time limited falls on a Sunday. It has no application to a case where the last day of the time limited falls on a holiday unless the holiday falls on Sunday. Moreover, Lincoln’s birthday is not a holiday in this State so far as the performance of judicial functions 'is concerned. It is made a legal holiday by statute in this State for certain purposes in regard to negotiable instruments. The rule is, that if a day be made a holiday for purposes stated in the statute creating it, it is not a legal holiday for any purpose not named in the statute. (21 Cyc. 440.) So far as the performance of legal functions is concerned, Lincoln’s birthday, not falling on a Sunday, is the same as any other day, and should be counted as a part of the time in which bills of exception are allowed to be filed although the last day may be on Lincoln’s birthday. This question was settled by this court in Trustees of Schools v. Griffith, 263 Ill. 550. In that case the court fixed the time in which a bill of exceptions should be filed. The time expired on Labor day. The bill was not filed on or before that day, and the same contention was made in that case as appellant is making in this case,— i. e., that Labor day should be excluded from the count. The ruling of the court was announced orally by Justice Cartwright, and the holding in that case was the same as here announced, and we see no reason for departing from that decision. The fact that the courts of Cook county were closed on Lincoln’s birthday can make no difference in this case. There is no reason shown in this record why the same could not have been presented to the trial judge whether the courts were in session or not, and a presentation. to him in vacation on February 12, the last day given in which to file the bill, would have been in time and the presentation sufficient to entitle appellant to file it when the clerk’s office should open. As a matter of fact it was not filed for more than twenty-five days after the time had expired.

The bill of exceptions having been properly stricken from the record by the Appellate Court, the only remaining question presented by the record for our consideration is whether or not the Appellate Court erred in sustaining the trial court in overruling the motion in arrest of judgment. The declaration consists of three counts. The first count charges, in substance, that the company negligently kept and maintained a Janner coupling device on one of its freight cars and negligently permitted the same to be in a bad state of repair so that the same could not be operated with safety, and that by reason thereof appellee was injured. The second count charged that appellee was injured by reason of the negligent failure of appellant to keep its track and guard-rail where he was injured in a reasonably safe condition by blocking or filling the space between the same so that his foot could not be caught, etc. The third count charged appellant with injuring appellee by reason of its negligent use of the said defective coupler and the failure of appellant to provide a safe track, as set forth in the previous counts. The three counts of the declaration appear to be all good counts with this one exception: every one of the counts fails to aver that appellee did not know of the defects and danger complained of and had not equal means of knowledge thereof with appellant,—or, in other words, that appellee failed to negative the assumed risk in every count. Assuming that the doctrine of assumed risk was applicable to every count of the declaration, appellant’s contention cannot be sustained. No demurrer was filed to the declaration and the declaration must be held good after verdict. Idc v. Fratcher, 194 Ill. 552; Linguist v. Hodges, 248 id. 491.

As the other errors assigned on this record cannot be considered for want of a bill of exceptions and for the reasons aforesaid, the judgments of the Appellate and circuit courts are affirmed.

r , , m , Judgment affirmed.