Grey v. Cohen , 1913 Ill. App. LEXIS 431 ( 1913 )

Mr. Presiding Justice P. A. Smith

delivered the opinion of the court.

This writ of error brings before us for review a judgment by default entered in the Municipal Court of Chicago in favor of defendant in error and against plaintiffs in error.

A motion on behalf of defendant in error is interposed (a) to strike from the record the bill of exceptions or statement of facts, and (b) to dismiss the writ of error.

Defendants, plaintiffs in error, entered their appearance April 26, 1911, and filed their affidavit of merits which, on May 4,1911, was stricken from the files. On May 18, 19.11, no amended affidavit of merits having been filed, a judgment was rendered in the Municipal Court in favor of defendant in error, by default for want of appearance.

The record then shows that several orders were made, continuing the cause from time to time; and on June 30, 1911, a motion was made and denied by the court to vacate the judgment of May 18, 1911. On July 20,1911, a motion was made by defendants, plaintiffs in error, to vacate the order of June 30, 1911, which motion was overruled; and the defendants thereupon moved the court to amend the record, and the court ordered the motion to be entered. On July 20, 1911, this writ of error was sued out to review the judgment, and was filed in the Municipal Court. On July 27,1911, an order was entered extending the time thirty days for plaintiffs in error to file a statement of facts, and on August 26, 1911, a bill of exceptions or statement of facts was marked “presented” by the trial judge. On September 13, 1911, it was filed in the Municipal Court nunc pro tunc as of August 26, 1911, and on the same day the motion for leave to amend the record was denied.

The object of the motion to amend the record, as disclosed by the interlocutory bill of exceptions, so-called, was to make the record show that within thirty days, from May 18, 1911, a motion to vacate the judgment was duly made. An order permitting or denying an amendment of the record is interlocutory, and this order was entered long after the final judgment and after this writ of error was sued out, and cannot be reviewed in this proceeding. Encyc. Pl. & Pr. vol. 7, p. 899, Hughes v. Felton, 11 Colo. 489; Hunt v. People, 76 N. Y. 89.

The record does not show that the bill of exceptions or statement of facts was presented, signed or filed within the statutory period of thirty days after the entry of the judgment. It shows no order of extension within that period of time. The motion to strike from the record the bill of exceptions or statement of facts must be sustained. Lassers v. North German Steamship Co., 244 Ill. 570.

It is urged in support of the motion of defendant in error to dismiss the writ of error that it was not sued out within thirty days after the entry of the final judgment as provided in section 23 of the Municipal Court Act (J. & A. ¶ 3335), and Schindler v. Edwards, 134 Ill. App. 637; Benjamin v. Chicago, I. & L. Ry. Co., 140 Ill. App. 312; Chicago Title & Trust Co. v. Kemler Lumber Co., 151 Ill. App. 579; Novelty Tufting Mach. Co. v. Peters & Roberts Furn. Co., 170 Ill. App. 134; Goldstein v. Miller, 173 Ill. App. 664, and Hosking v. Southern Pac. Co., 243 Ill. 320, are cited in support of the position. In the Eosking case, supra, this question was not involved for the reason that the writ of error in that case was sued out within thirty days from the date when the judgment became final, and the language used on page 324 of the opinion must be read with reference to the question before the court. The other cases above mentioned have been overruled by the Supreme Court in Clowry v. Holmes, 238 Ill. 577; David v. Commercial Mut. Acc. Co., 243 Ill. 43; and People v. Hibernian Banking Ass’n 245 Ill. 522, in which the Supreme Court has held that the various provisions of section 23 of the Municipal Court Act, with reference to suing out writs of error to review final orders or judgments of the Municipal Court, are in conflict with the constitution and, therefore, void, and that such writs of error must be sued out under the provisions of the general Practice Act; and, as we are preparing this opinion, our attention is called to the ease of Hoffman v. Paradis, 259 Ill. 111, which holds that in so far as section 23 of the Municipal Court Act limits the time to thirty days within which a writ of error may be sued out to review a final order or judgment of the Municipal Court, that section is unconstitutional and void, and that the time for suing out a writ of error is a matter affecting the practice in the Supreme and Appellate Courts, and is governed by the Practice Act and not by the Municipal Court Act.

The motion to dismiss the writ of error must, therefore, be denied.

The affidavit of defense which was stricken from the record states that affiant verily believes that said defendants have a good defense to this suit upon the merits to the whole of the plaintiff’s demand, and that the nature of the defense is that said account sued upon was not assigned by the American Shirt Company to said plaintiff, and that said account was paid by said defendants to the person or persons entitled to receive the same. In our opinion the affiant set up a good defense, at least in so far as it denied the assignment, and it was erroneously stricken.

As above stated the defendants entered their written appearance when the affidavit of merits or defense was filed. The judgment entered by the court was “by default for want of appearance.” This was contrary to the record and the fact and was irregular.

For the error indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.