Illinois Brewing & Malting Co. v. Ilmberger , 1910 Ill. App. LEXIS 551 ( 1910 )

Me. Presiding Justice Chtteaus

delivered the opinion of the court.

Various grounds are advanced for granting the motions made. First: It is contended the order entered is not a final order. The Municipal Court Act provides for the review of the final orders and judgments of that court. As the order in question is an absolute order for the payment of money it is clearly a final order and plaintiff in error is entitled to prosecute a writ of error to procure its reversal.

Second: It is contended the correct statement of facts appearing upon the trial and of all questions of law involved which is filed herein to comply with clause sixth of section 23 of the Municipal Court Act is insufficient in various respects and was signed by the judge and filed too late. As it was clearly signed and filed too late we find it unnecessary to consider the question of its sufficiency. The clause referred to in the Municipal Court Act, inter alia, provides:

“Within thirty days after the entry of any final order or judgment, or within such further time as may, upon application therefor within said thirty days, be allowed by the court, it shall be the duty of the judge * * * to sign and place on file in the case * * * a correct statement * * * of the facts appearing upon the trial thereof and of all questions of law involved in such case and the decisions of the court upon such questions of law * * *. Such statement * * * together with a certified copy of the judgment * * * shall be certified to the Supreme Court or Appellate Court, as the case may be, as the record to be considered upon the review of such order or judgment by writ of error.”

The order was entered September 3, 1909. The statement was signed by the judge on October 30,1909, and was filed on November 3,1909. So far as the record shows no allowance of time, beyond the thirty days fixed by the statute, was made by the court. The recital of an order, real or supposed, such as appears in the certificate to the statement, is not the equivalent of an order in the record. Furthermore were there such an order in the record as the one referred to in the certificate, plaintiff in error would not be helped thereby. The filing of the statement would nevertheless have been one day too late.

The Statement of Facts must be stricken from the record. The only error assigned is that the court erred in entering the order of September 3, 1909, requiring plaintiff in error to pay the full amount of the judgment against him. Whether that error was well assigned cannot be ascertained upon the record remaining. The motion to dismiss these proceedings in error must therefore be allowed.

Motion to dismiss allowed.