Richter v. Chicago & Erie Railroad ( 1915 )

Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Bichter, a brakeman in the service of the defendant, the Chicago & Erie Bailroad Company, brought this action to recover for the loss of his foot while uncoupling cars in a moving train. There was a verdict and judgment for the plaintiff for nineteen hundred and fifty dollars damages, from which the defendant appealed. The court gave the defendant sixty days from December 14, 1912, to file a bill of exceptions. The time for filing the bill under this order would ordinarily expire February 11th, and no bill of exceptions was signed or filed on or before that date. February 13th, over the objection of plaintiff, an order was made extending the time for filing the bill to March 1st, and February 28th the bill was filed. In Trustees of Schools v. Griffith, 263 Ill. 550, it was said (p. 552) that the bill of exceptions was not filed until after the time fixed by the order of the court had expired, and the motion of the defendant to strike the bill from the files was sustained and the holding of the court announced in open court at the February term. The files and record of the Supreme Court show .the motion of appellees and that appellants filed in opposition thereto points in which it was admitted that under the order the time for filing the bill of exceptions would ordinarily have expired August 31st, and that the bill was not filed until September 2nd; but it was contended that as September 1st was Labor Day and a legal holiday, that therefore the time for filing the bill was by operation of law extended to September 2nd. The oral announcement of Mr. Justice Cartwright was as follows:

“There is also a motion by appellee to strike the bill of exceptions because not filed within the time allowed by the Court. It was not filed within the time and the reason or excuse offered is that the time expired on the 2nd of September, on Monday, which was Labor day and consequently a holiday. Labor day is a holiday for certain purposes specified. It is not a holiday with reference to the performance of judicial functions or clerical duties by officers of the Court and is no excuse for not filing the bill of exceptions in the time allowed by the Court. The motion is allowed and the bill stricken from the files.”

In the present case February 12th was Lincoln’s birthday, and under the rule announced in the case cited it was not a holiday, and it was no excuse for not filing the .bill of exceptions in the time allowed by the court that February 12th was Lincoln’s birthday. For the reason stated the bill is stricken from the files.

The striking of the bill of exceptions from the files leaves only the question whether the court erred in overruling defendant’s motion in arrest. After verdict all intendments and presumptions are in favor of the pleader, and if. a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matters necessary to be proved and without which the jury could not have given the verdict, the want of an express averment of such matter is cured by verdict. Sargent Co. v. Baublis, 215 Ill. 428.

• We think that after verdict the declaration must be held to state a cause of action and to negative the assumption of risk by the plaintiff, and that the court did not err in overruling defendant’s motion in arrest.

T¡he motion to strike the bill of exceptions from the record is sustained, and the judgment of the Circuit Court is affirmed.

Affirmed.