Lucic v. Hiti

OPINION OP COURT.'

The following is taken, verbatim, from the opinion..

VICKERY, J.

It is conceded that the petition in erior and this ti’anscript were filed in time, but it is claimed that the bill of exceptions must be filed within forty days from the overruling of the motion. We do not so understand the law. The filing of a bill of exceptions is not a jurisdictional question. The record shows that it was filed properly in the court below and was signed properly, and it was filed in this couit within sixty days, with the petition in error and the transcript. The petition in error and the transcript are jurisdictional, and if they had not been filed within time this court would have not assumed jurisdiction of the case. The jurisdiction was assumed from the filing of the petition in error and the transcript. The bill of exception merely raises other questions and it was properly filed in this court within sixty days from the time when the motion was overruled, and so there would be no purpose in having the bill of exceptions filed before this court had assumed jurisdiction of it, and so we are compelled to o vex rule this motion.

In his original statement of claim, plaintiff alleged that he had paid the money. In the amended petition he left that out but the evidence shows that it was all paid and it was á suit brought to recover this money. The evidence shows that it was paid without any protest. It was paid voluntarily and we do not understand how money paid voluntarily under such circumstances can be recovered. It is not necessary for us to hold whether the bonus was legal or illegal. It is a matter which the plaintiff below had the light to refuse to pay in the first instance, but he accepted the loan and permitted the bonus to be deducted from the full amount and subsequently paid the full amount voluntarily and he is not entitled to recover it back.

(Sullivan, PJ., and Levine, J., concur.)