Kiesewetter v. Supreme Tent of the Knights of the Maccabees of the World , 112 Ill. App. 48 ( 1904 )

Mr. Justice Ball

delivered the opinion of the court.

When the court overruled the motion for a new trial appellant did not except thereto; but, after judgment was entered, and “ upon the same day,” she entered one exception to both orders. Since the case of Gibbons v. Johnson, 3 Scam. 63, the uniform rule in this state has been that an exception to any ruling of the trial court is futile unless it is taken at the time the ruling is made; and the bill of exceptions must affirmatively show that it was taken at that time. Dickhut v. Durrell, 11 Ill. 84; Pottle v. McWhorter, 13 Ill. 454; E. St. L. El. Ry. Co. v. Cauley, 148 Ill. 490. It follows that the action of the court in overruling the motion for a new trial cannot be assigned for error.

A bill of exceptions is the pleading of the party presenting it. All its uncertainties and omissions are charged to him. If it fails to show error, his appeal is of no avail. Garrity v. Hamburger Co., 136 Ill. 499. “To overcome the presumption that the ruling of the trial court was right, the bill of exceptions must affirmatively show that error was committed.” Ittner Brick Co. v. Ashby, 198 Ill. 565.

The by-laws put in evidence do not appear in the abstract, nor are we able to find them in the record. Hence, ive must hold that the trial court did not err in admitting such by-la wp in evidence; and that, if before us, they would show they were in force at the time of the suicide and contained provisions and stipulations'which sustain the court in directing the jury to return the verdict they rendered. Culver v. Schroth, 153 Ill. 443; Staude v. Schumacher, 187 Ill. 187; City E. Ry. Co. v. Jones, 161 Ill. 47; Severenz v. Elder, 65 Ill. App. 80; Douglass v. Miller, 102 Ill. App. 345.

We cannot review a case where it affirmatively appears that as presented to us it differs from the case passed upon by the trial judge. Dean v. Ford, 180 Ill. 311; City of Alton v. Lavenue, 81 Ill. App. 141.

The judgment of the Circuit Court is affirmed.

Affirmed.