Schwartz v. Brinks Chicago City Express Co. , 1916 Ill. App. LEXIS 439 ( 1916 )

Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal by defendant from a judgment against it for $2,500 rendered upon the verdict of a jury in an action for negligently causing the death of plaintiff’s intestate, a little boy of the age of four years.

Appellee moved the court, on January 17, 1916, to strike the bill of exceptions from the files and to affirm the judgment, which motion the court took for deliberation in conference. When the motion was reached in conference the record, which it was indispensable for the court to examine in order to decide the motion, was not in the files* but was in the possession of counsel for appellee. For this reason the motion was denied. A motion subsequently made to vacate that order and to entertain the prior motion was made and denied.

The proper dispatch of the business of this court will not permit of its waiting the convenience of counsel in returning files retained in their offices and without which the motion made by such counsel cannot be decided. We would not now recede from our former action were it not imperative on us to do so in order that our decision may rest upon the law as announced in the cases hereinafter cited.

Counsel for appellee in their brief renewed their motion to strike the bill of exceptions and to affirm the judgment, and the court in conference, on examination of the record then before it, on its own motion vacated the order entered on the motion of January 31, 1916, leaving the motion to strike and affirm for consideration and disposition at this time. That motion must be allowed.

The chronological order of events is a follows:

The judgment appealed from was entered May 29, 1915. Defendant was by order duly entered given ninety days from that date in which to file its bill of exceptions. On August 21,1915, the time for filing the bill of exceptions was extended twenty days from August 26, 1915. By the last order the time for filing bill of exceptions expired on September 15, 1915.

The trial judge was the Honorable Richard S. Tut-hill. On August 25, 1915, Victor P. Arnold, who we will assume was likewise a judge of the Circuit Court notwithstanding there is nothing in the record to so indicate, marked upon the bill of exceptions that it was presented to him on that date. On the 21st day of September, 1915, Judge Tuthill, the trial judge, signed and approved the bill of exceptions and ordered it filed nunc pro tunc as of August 25, 1915, and it was filed September 21, 1915.

No statutory reason is made to appear to account for the presentation of the bill of exceptions to Judge Arnold, nor is any reason shown by the record why the same was not signed and approved by the trial judge within the time allowed by the order of court. This case is not distinguishable from People v. Rosenwald, 266 Ill. 548, or Illinois Improvement & Ballast Co. v. Heinsen, 271 Ill. 23.

There is nothing in the record showing that the trial judge “by reason of the death, sickness or other disability” was unable to sign the bill of exceptions, or that such judge was at that time suffering from any disability of a physical or mental nature which prevented him from performing his duties or functions. Such disability is required by section 81, ch. 110, Rev. St. (J. & A. & 8618), in order to authorize a judge other than the trial judge to sign the bill of exceptions.

The presentation of the bill of exceptions in the record to Judge Arnold and his so marking it did not authorize the trial judge to sign the same and order it filed nunc pro tunc as of the date when the same was presented to Judge Arnold. Judge Arnold’s marking the bill as having been presented would have been sufficient to furnish a basis for the nunc pro tunc order by the trial judge when he signed the bill of exceptions if there was any recitation in the record that the marking by Judge Arnold of its presentation was so done while he was presiding in the Circuit Court, and that due diligence had been shown by defendant in seeking to present the bill to Judge Tuthill before presenting it to Judge Arnold. The record is absolutely silent on these matters. Neither is there any recitation of any fact by the trial judge why the bill of exceptions was not presented to him within the proper time. Such a recitation by the trial judge is essential and cannot be dispensed with.

Where, as here, the record shows that the bill of exceptions was not actually signed within the time granted for filing it, it is not properly in the record. Under the cases above cited this bill of exceptions was not filed within the time authorized by law. It therefore must be, and is, stricken from the files. There is nothing now before us but the common-law record, and in it there appears to be no error."

The bill of exceptions is stricken from the files and the judgment of the Circuit Court is affirmed.

Affirmed.