Wesley Hospital v. Strong

Mr. Justice Scott

delivered the opinion of the court:

Appellant contends that upon judgment being rendered against it in the personal injury suit it was allowed an appeal, and was given thirty days in which to file an appeal bond and sixty days in which to file a bill of exceptions, but that by misprision of the clerk, not discovered until after adjournment for the term, none of the orders following the rendition of the judgment were entered of record, and this bill was filed to have the record in the suit at law amended so that it would accord with the facts. The appellee contends that if appellant is entitled to relief of any character it has an adequate remedy at law, and urges that for various other reasons the decree of the circuit court is erroneous.

Waiving all other questions, we are satisfied that the Appellate Court was correct in directing a dismissal of the bill, for the reason that the evidence that the court allowed an appeal and fixed the time within which the bond and bill of exceptions could be filed is not of the character that would warrant an amendment of the record after the term. The fact that a particular order has been made by the court at a previous term, if it is not of record, can only be shown “by the production of some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers on file in the cause. It cannot be determined from the memory of witnesses or by the recollection of the judge himself.” Tynan v. Weinhard, 153 Ill. 598; Gebbie v. Mooney, 121 id. 255; People v. Anthony, 129 id. 218; Chicago, Milwaukee and St. Paul Railway Co. v. Walsh, 150 id. 607; Culver v. Cougle, 165 id. 417; Tosetti Brewing Co. v. Koehler, 200 id. 369.

In the personal injury case, after the final judgment had been entered, and there had been an adjournment for the term, an appeal bond and a bill of exceptions were filed, and it appears from the recitals contained in those documents that an appeal was prayed and allowed and a time fixed for filing bond and bill of exceptions. It is manifest that a note or memorandum which would authorize the amendment of the record made at a previous term must be a note or memorandum which was made during that term, otherwise the rule would amount to nothing. For this reason the recitals in the appeal bond and the bill of exceptions are without significance.

Counsel for appellant in the personal injury suit, who does not appear in this court, testified that when the appeal was allowed and time fixed for the bond and bill of exceptions he made a written memorandum upon a private docket or calendar kept by him showing the entry of the orders, and it is said that as he was an officer of the court this was sufficient to warrant an amendment of the record. No authority is cited in support of this proposition. The record of the court imports absolute verity, and a note or memorandum which would authorize its amendment after the adjournment of the term must necessarily -have been a note or memorandum which can be said to have been made by the judge or pursuant to a requirement of the judge or of the law. A private memorandum made by one of the attorneys in the case, for his personal use, does not satisfy the requirements of the law.

Appellant urges upon our attention the cases of Wight v. Nicholson, 134 U. S. 136, and Michigan Ins. Bank v. Eldredge, 143 id. 293, which deal with this question. The law is so well settled in this State and the rule above repeated has been so long and so universally followed that we would not be warranted by decisions in another jurisdiction in departing therefrom. The circuit court evidently recognized the law of this State to be as we have-above stated. That court disregarded the specific prayer of the bill, which was that the record of the court be made to show the allowance of the prayer for appeal and the order fixing the time in which to file a bond and bill of exceptions, and under the prayer for general relief decreed that the temporary injunction should be continued in force unless the plaintiff in the personal injury suit should enter into a stipulation consenting that the judgment in the personal injury case should be vacated and another judgment entered for a like amount, accompanied by an order allowing an appeal and fixing the time within which a bond and bill of exceptions could be filed. Such a decree cannot be sustained. It merely does indirectly that which under the evidence could not be done directly.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed,