Harrison v. Boetter

Mr. Justice Freeman

delivered the opinion of the court.

We are met at the threshold in consideration of this case with the objection, that as no propositions of law were submitted by plaintiff in error to the trial court, and no exception to the judgment appears by the bill of exceptions to have been taken, we can not inquire into the sufficiency of the evidence to support the judgment.

This contention is justified by the record. It would appear from the clerk’s statement as shown by the record itself, were we able to consider it, that after the judgment of the court directing the peremptory writ of mandamus to issue was rendered, the defendant entered his exceptions and prayed an appeal. But in the bill of exceptions itself as signed and sealed by the judge, no such exception appears.

The statute provides (Rev. Stat., Chap. 87) that upon filing a petition for mandamus summons shall issue “in like form as other summons in suits at law; ” that “ like proceedings shall be had as in other cases at law,” and that appeals and ivrits of error may be prosecuted as in other civil cases. Under this statute it has been held repeatedly that a mandamus proceeding is governed by the rules of pleading applicable to other actions at law. Board of Supervisors v. The People, 159 Ill. 242; Chicago G. W. Ry. Co. v. The People, 179 Ill. 441; The People v. Chytraus, 183 Ill. 190.

It seems to be the clear requirement that the general practice in these cases must be such as in ordinary suits at law so far as applicable. We know of no reason why the practice with reference to exceptions to the rulings of the court is not so applicable. It has been recognized by counsel in this case by presentation here of a bill of exceptions. The difficulty is that the bill of exceptions does not go far enough. The defect would be fatal in any other law case, and we are unable to find any sufficient ground of distinction in vieAV of the express provision of the statute between mandamus in this respect and “ other cases at law

The settled rule in this State is, where it does not appear from the bill of exceptions there was an exception taken to the finding and judgment when, as in this case, and as usual in mandamus cases, the hearing is before the court without a jury, that the appellant or plaintiff in error is precluded from challenging in an Appellate Court the sufficiency of the evidence to support the finding, and the assignments of error in that behalf can not be considered. It is not sufficient that proper exceptions appear in the judgment order allowing an appeal. They must appear in the bill of exceptions signed and sealed by the judge, and the exception can only be taken and preserved in that manner. Fireman’s Ins. Co. v. Peck, 126 Ill. 493; l. C. R. R. Co. v. O’Keefe, 154 Ill. 508; Bailey v. Smith, 168 Ill. 84; Rev. Stat., Chap. 110, Sec. 60, 61, 62. The rule is stated and the authorities which support it will be found more fully cited in Wehrheim v. The Thiel Detective Service Company, 87 Ill. App. 565.

We are precluded from considering the sufficiency of the evidence, and must presume the finding of the trial court was correct.

Ho written propositions of law in accordance with section 42 of the practice act, were submitted to the trial court. “ There is, therefore, no question presented by the record upon which we can pass.” Gould v. Howe, 127 Ill. 251; Peterson v. Currier, 163 Ill. 528; Boyce v. Commercial Publishing Co., 169 Ill. 256.

It is proper to state that the transcript of the record in this case has been apparently mislaid or lost since it was duly filed in this court, and since the filing of the abstracts and briefs. Ho complaint is made, however, as to the accuracy and completeness of the abstract which is prepared by counsel for plaintiff in error and must be taken as conclusive against him. An appellant’s abstract must, as against him, be deemed to be sufficiently full and accurate' to present all the errors upon which he relies. C., P. & St. L. Ry. Co. v. Wolf, 137 Ill. 364; Shields v. Brown, 64 Ill. App. 259, and cases there cited. It must, we think, be deemed at least so far accurate as not to be presumed to omit anything, if contained in the transcript, which is necessary to the prosecution of his appeal or to a writ of error in this court. But, however that may be, the transcript of the record itself, so far as appears, is in possession of the clerk of this court. The records of the court so show, and that presumption must still be indulged until the contrary appears. The fact that it may have got into the wrong file for .the time being does not deprive the court of its jurisdiction, nor justify us in delaying or refusing to determine the rights of the parties, where actual reference to the transcript itself is not necessary for that purpose.

The judgment of the Circuit Court must be affirmed.