Esmond v. Esmond , 142 Ill. App. 233 ( 1908 )

Mr. Presiding Justice Thompson

delivered the opinion of the court.

On March 12, 1907, Ora B. Esmond and Thomas W. Esmond, as executors of the last will of Cornelius W. Esmond, deceased, filed in the Prohate Court of La Salle county a report as executors of said estate. On May 27, 1907, S. C. Esmond, appellant, filed certain objections, involving several thousand dollars, to portions of the report made by the executors. There was a hearing in the Probate Court on the objections. On June 27, 1907, the court' overruled the objections and made an order approving’ the report of the executors. From the judgment overruling the objections S. C. Esmond prayed an appeal to the Circuit Court. A transcript was filed in the Circuit Court October 1, 1907. The case was set down for hearing at the October term of the court by agreement of both parties for December 24, 1907, and reset for January 6th. At the hearing on January 6th after the opening statements had been made to the court by counsel for both parties, the record shows that “the court stated that he would have to dismiss the appeal in the cause for the reason that it does not appear that the persons named in the transcript were ever appointed executors in said estate, or ever qualified as such, or that any such estate is pending in the Probate Court; thereupon counsel, for objector, S. C. Esmond, moved the court for a certiorari to the clerk of the Probate Court for more perfect record, which motion the court overruled and thereupon dismissed said appeal.” From the order of the Circuit Court dismissing that appeal the objector prosecutes this appeal.

There is no bill of exceptions in the record. The ordinary rule is that the judgment of a court cannot be reviewed without a bill of exceptions showing the grounds on which the court acted. To that rule, however, there is the exception when the judgment appealed from concerns a matter of pleading. The exception also includes cases where the record shows the grounds on which the court acted. Wiggins Ferry Co. v. People ex rel., 101 Ill. 446; People ex rel. v. C. & N. W. Ry. Co., 200 Ill. 289; Alley v. McCabe, 147 Ill. 410; City of Rockford v. Compton, 115 Ill. App. 406; Offield v. Siler, 15 Ill. App. 308; Radke Brewing Co. v. Granger, 101 Ill. App. 599.

The record in this case states that the court dismissed the appeal for the reason that it does not appear from the transcript that the persons named therein were executors in said estate. An assignment that the court erred in so dismissing the appeal is properly presented for decision without a bill of exceptions. It is not now contended by appellees that there was anything defective in the transcript or that it was necessary that the transcript should show the appointment of executors and the pendency of the estate in the Probate Court.

The transcript from the Probate Court shows a proper placita and sets out in full the report of the executors of the estate and the objections to such report by appellant. Only such part of the report as was objected to wherein the objections were overruled was appealed to the Circuit Court. No reason or authority is presented that requires the transcript from the Probate Court to show the entire proceedings in the estate. There was no necessity for the transcript showing the proceedings on the probate of the will unless the appeal was from the probate of the will. The record, showing the appellees as such executors had filed such report and that the Probate Court had approved it and overruled the objections thereto, was sufficient to show that the Probate Court had such an estate before it. It may be that upon the hearing of the objections, it might be necessary to offer in evidence the will and other papers in the estate, either to explain items in the account or for the purpose of some point in the objections, but that would not make it necessary to include such papers in the transcript sent up on the appeal for the purpose of giving the Circuit Court jurisdiction of the objections to the report. The appellees contend that the appellant confessed that the record was imperfect by asking for leave to procure a more perfect record. It was the right of appellant, when the court had intimated that he thought the record was insufficient, to try to meet the views of the court by procuring a record that would conform to the requirements of the court.

It is a general principle that where a party appeals from the judgment of a court of limited jurisdiction, and has filed a transcript and an appeal bond has been properly approved, the appeal may not be dismissed, for any informality or insufficiency in the transcript without giving the appealing party a reasonable opportunity to correct the defect, if it can be done, and he desires to correct it. Statute of Amendments and Jeofails, sec. 1. That opportunity was refused in this case.

Appellees further contend that another reason may be found in the record for dismissing the appeal. Appellees did not seek to have the appeal dismissed in the court below on the ground they now contend was a good cause for the dismissal, and the record shows that the court did not dismiss it on that ground. Appellees cannot raise a question here successfully which was not raised in the court below and which the opposite party has had no opportunity to meet, and concerning the merits of which we refrain from expressing any opinion in this decision, inasmuch as appellant desired to have a more complete record from the Probate Court, and that record might meet the reason urged in this court for the dismissal. We think the court erred in the dismissal of the appeal on the ground that the transcript was insufficient, and in not giving appellant an opportunity to file an amended transcript.

Reversed and remanded.