text:
    Seehausen Wehrs & Company, Plaintiff in Error, v. Interstate Steel and Iron Company, Defendant in Error.
    Gen. No. 15,589.
    1. Municipal Court Act—when transcript insufficient for review. An instrument which does not comply with the Municipal Court Act so that it may be regarded either as an actual report of the proceedings in the trial court or as a correct statement of the matters and things essential to enable a review and which is not attested or verified to be either such a report or statement, will be stricken from the transcript.
    2. Municipal Court—function and construction of statement or report required for purposes of review. A bill of exceptions filed pursuant to the provisions of the Municipal Court Act, like other bills of exceptions is to be treated as the pleading of the party presenting it and to be construed most strongly against such party. In fourth class cases no exceptions are required to be taken to preserve a question for review, and, therefore, no bill of exceptions is essential to obtain such review, but the statement or report provided by statute as a substitute for the bill of exceptions performs the functions of a bill of exceptions and the rules of construction which apply to bills of exceptions are to be applied to such statements or reports.
    3. Municipal Court—procedure to review judgments of. The manner of reviewing judgments of the Municipal Court being prescribed by statute, to avail of such proceedings the provisions of the statute must be strictly followed.
    4. Statutory law—construction of, hy implication. Courts may perfect statutory enactments by necessary implications, that is, such implications as may be found to be required in order to carry out the express provisions; but courts may not by implication, intendment or inference, add to or deduct from, or change or vary, the express provisions.
    Error to the Municipal Court of Chicago; the Hon. John P. Gillan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Motion allowed.
    Opinion filed July 16, 1909.
    Statement by the Court. Defendant in error has moved this court to strike from the record filed herein that part thereof which, judging by the verbiage of the certification of the judge thereto, was intended to be a bill of exceptions. By a certification of the clerk of the court below, designating it as a bill of exceptions, that instrument has been incorporated into the record filed here. It is to be inferred that plaintiff in error prepared it and designed it to be so incorporated as and for a compliance with the requirement of item sixth of section 23 of the Municipal Court Act; that is, as either: A correct statement of the facts appearing upon the trial and of all questions of law involved in the case and the decision of the court upon such questions of law, or as a correct stenographic report of the proceedings in the case as either party may desire to have reviewed. These are the only two instruments (in lieu of bills of exceptions which are eliminated in cases of the fourth class) provided for in the Municipal Court Act, to be signed and placed on file by the trial judge for the purpose of review of the court’s judgments in cases of the fourth class.
    The Municipal Court Act, so far as now material, provides, in section 23: “That the final orders and judgments of the Municipal Court in cases of the fourth class * * * shall be reviewed by writ of error only. * * * The manner of prosecuting such writ shall be as follows: * * *
    ‘ ‘ Sixth : Upon application made * * * it shall be the duty of the judge * * * to sign and place on file in the case * * * if so requested by either of the parties, * * * either a correct statement, to be prepared by the party requesting the signing of the same, of the facts appearing upon the trial * * * and of all questions of law involved in such case, and the decisions of the court upon such questions of law, or, if such party shall so elect, a correct stenographic report of the proceedings at the trial, and a correct statement of such other proceedings in the case as such party may desire to have reviewed. * * * Such statement, or such original report * * * together with a certified copy of the judgment * * * shall be certified to the Supreme Court or Appellate Court * * * as the record to be considered upon the .re- * * * view

      “Ninth: In all other particulars the practice in writs of error to the Municipal Court in cases of the fourth and fifth classes shall be the same, as near as may be, as the practice in writs of error to Circuit Courts in similar cases.”
    Section 38 of the act provides for review of cases of the first, second and third classes by way of either appeal or writ of error. As to these classes the act provides for the use of bills of exceptions, in the making up of a record for review, and, in that, as well as some other respects, the act distinguishes and differentiates between the review of cases in the first three classes and the fourth and fifth classes, created by the act.
    This suit is one of the fourth class.
    The writing inserted in the record contended to be in substantial compliance with item sixth, aforesaid, has an introduction as follows: “Be it remembered that on the trial of this cause, had before the Honorable John H. Grillan, sitting as judge of said court, on March 9th, 1909, the following proceedings were had, ” and proceeds, then, with statements that certain things were admitted by defendant; that, thereupon, defendant “in order to sustain the set-off,” produced certain named witnesses who “said” or “testified” certain specified matters and things; that certain exhibits were introduced in evidence; that thereupon defendant rested; that, thereupon, on behalf of plaintiffs, certain named witnesses testified to certain specified matters and things; and, that, thereupon, plaintiffs rested. That the court then found the issues for the defendant under its plea of set-off and assessed damages' against the plaintiff in the sum of $411.14 and rendered judgment therefor. That, thereafter, on March 16, 1909, plaintiff moved to vacate the judgment that had been entered and in support of the motion filed certain affidavits, which are set up in words and figures. That “thereupon Mr. Morris on behalf of defendant exhibited to the court” a certain paper set up in full. That the court then stated that if defendant would remit $63.30 and “offer in open court to return the belt” in question the motion for a new trial would be overruled and that, defendant having consented, the court overruled the motion “and gave judgment in favor of the defendant under its plea of set-off and against the plaintiff nunc pro tunc, as of March 29th, 1909, in the sum of $347.84.”
    The writing then concludes with a certificate as follows: “And forasmuch therefore as the matters above set forth do not fully appear of record the plaintiffs tender this bill of exceptions and pray that the same may be signed and sealed, by the judge of this court, pursuant to the statute in said case made; which is accordingly done this 27th day of April, 1909.
    John H. Grillan, (Seal.)
    Judge.”
    There is nothing in this certificate, or elsewhere in the instrument, to indicate that the instrument contains all the evidence offered or introduced by the parties at the trial.
    Defrees, Buckingham, Ritter & Campbell, for plaintiff in error.
    Goldsmith & Morris, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

We are of the opinion that the instrument in question, which the clerk designates as a bill of exceptions, is not verified or attested, or even asserted, to be either such statement or report as the sixth item of section 23 requires and that, for that reason, it complies with the statute in neither substance nor form, and that, consequently, the motion to strike the same must be allowed. As a part of “the record to be considered” upon review, in these fourth class cases, the statute provides for the incorporation therein of a certain statement, which shall be a correct statement of certain matters and things, or of a certain report, which shall be a correct report of certain matters and things. The instrument here incorporated into the record is in nowise attested or verified to be either snch statement or such report. Neither is it stated, attested or verified to be correct, as either such statement or report. By no word or expression to be found in either the instrument itself or in the record elsewhere does the trial judge assert anything, or assume any responsibility, as to the instrument being a full and correct statement of the facts in the case, of all questions of law involved and the decision of the judge upon these questions, which elements the statute clearly contemplates shall appear when the statement method is followed. Of course, when neither the party preparing the statement nor his adversary desires to raise any question of law in the court of review, then that feature of the statement may be omitted. When the statement method is followed, the adversary has no opportunity to supply an additional statement of the facts or questions of law that he may desire to have appear, as he has, by the express terms of the statute, when the report method is followed. Hence there is a greater necessity for certainty or assurance to this court, when the statement method is adopted than when the report method is followed, that the statement of the facts, or, when the facts are in sharp controversy, of the condition of the case in respect to the facts, be full and complete as well as correct. The instrument before us, however, purports to be neither a complete and correct statement of the facts nor a correct stenographic report, and these are the only kinds of instruments the statute permits, as the foundation for judicial action by this court on review. Upon what legal ground or principle must this court regard a writing, signed and placed on file, to be something no one asserts it to be or what no one will assume the responsibility of saying that it is ? We do not believe in hampering or encumbering judicial proceedings with formalities. Decidedly the contrary. But proceedings, whereupon property interests of greater and of less importance to litigants depend, should, in principle, be founded upon some certainty in the records thereof. Licensing, and thereby encouraging, looseness in records to such a degree as to presume, without any one’s say so, that a fundamental record, or a part thereof, is correct, authentic and complete, would establish a practice dangerous in the highest degree. Who is responsible for the omission, in such case as this, if the insufficiency of the instrument has arisen because of an omission, and to whom, according to the principles of the law, must the omission be charged? Since the earliest period of the administration of law by the Supreme Court of this state it has been a rule governing our courts “that the bill of exceptions is not to be considered as a writing of the judge, but is to be esteemed as a pleading of the party,” and that “if liable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to be construed most strongly against the party who prepared it.” Rogers v. Hall, 4 Ill. (3 Scam.) 6. In that case the court threw the burden of responsibility for omission upon the appellant and said: “The party guilty of the omission must be the sufferer, and not the opposite party.” The rule was approved in McKee v. Ingalls, 5 Ill. 30, 34, and again in Cummings v. McKinney, 5 Ill. 57, 60, where the court expressed its regrets at being compelled to decide the case, in view of “the loose and unsatisfactory manner in which the bill of exceptions is made out.” In Wright v. Smith, 82 111. 527, the Supreme Court adhered to the rule and applied it in an instance where the bill of exceptions was silent in a certain particular. The record showed that on motion of plaintiff’s counsel all testimony relating to a chattel mortgage was excluded. Whether or not any reason was assigned for the motion did not appear. It was held that the silence in this respect required the court to assume that the reasons for the motion were not disclosed. So, in the case at bar, ‘absence of or silence in respect to any statement that the writing involved was such an one or held such contents as the statute required does not justify the assumption or presumption that the contents are such. In Redfern v. McNaul, 179 Ill. 203, the rule of Eogers v. Hall was approved, and, there being a conflict of statement in the bill of exceptions, the court held: “One statement is entitled to as much weight as the other, and the bill of exceptions being the pleading of appellant, he is responsible for the contradiction and it is to be construed against him.” It is our opinion that when the statement method provided for, in item sixth aforementioned, is followed it must affirmatively be made to appear by certification or upon the face of such statement that it is full and complete in respect to the statutory requirements as herein pointed out.

As the caption of the instrument before us contains the statement that .“the following proceedings were had,” it may be conceded that correctness must be implied, in so far as “proceedings” are shown by the instrument. Even that concession does not make the instrument such a statement as the statute requires as a foundation for action by this court. An attestation that the proceedings appearing in the instrument are correctly shown is not the equivalent of an attestation, as required, that the instrument is a “correct statement * * * of the facts appearing upon the trial,” etc. That the instrument, incorporated by the clerk into the record, is such statement as the statute requires must not be left to conjecture, presumption or assumption, but must be shown by proper authentication or attestation. The fact of the instrument being the statement or the report the statute requires cannot be regarded as of less importance than the signing thereof within proper time. In Burst v. Wayne, 13 Ill. 664, it was held, in respect to the taking and signing of the bill of exceptions in proper time, that it must appear on the face of the bill, affirmatively, that it was taken and signed in proper time. This rule has since been followed in several cases, for instance, Traction Co. v. Hansen, 125 Ill. App. 153, 157, and is well established. Upon the principle and authority of the cases hereinbefore cited this court, under the law, is prohibited from indulging, in favor' of plaintiff in error, in the conjecture or assumption that the instrument here involved is, what it does not even purport to be, a statement or a report such as the statute expressly requires.

This newly enacted statute dispenses with the taking of exceptions to the rulings and decisions of the court in fourth class cases and provides for a review without them. There is, therefore, no occasion for a bill of exceptions in cases of this class. Eecognizing, however, the necessity that a record must be made up for the submission of the questions involved to the reviewing court in some form, the statute substitutes for the bill of exceptions two methods, that is, a statement for preserving “the facts,” “all questions of law involved” and “the decisions of the court upon such questions of law,” or a correct stenographic report. Whichever may be adopted, a statement or a report, it is, as where a bill of exceptions is used, to be prepared and presented by the party desiring it for use. The statute eliminates the bill of exceptions in the fourth class cases and in express terms prescribes that the manner of prosecuting this statutory writ of error shall be by the use of a statement of a certain character or of a report of a certain character to be prepared by a party and signed and filed by the trial judge. A different situation arises, owing to these new statutory enactments, but, as near as the altered circumstances will permit, the statement or the report performs the office of the eliminated bill of exceptions. By clear analogy to the rule in respect to bills of exceptions, the statement or report must be regarded as the pleading of the party preparing and tendering it, and upon that party alone rests the responsibility for omissions.

The view being adopted that the particular instrument here involved is not such a statement or report as the statute contemplates, then it follows, necessarily, that there is in this record no such statement and no such report as the statute requires. This court then, if it considered the case upon the incompetent instrument in the record, would, indeed, be denying to defendant in error that due process of law which both the state and the federal constitutions guarantee to him. We have no warrant of law for reviewing the judgments of the Municipal Court, certainly none for reversing that court, upon a representation of the proceedings therein other than or different from the land and manner of record the statute prescribes.

Unquestionably the legislature had the power to grant, regulate and control the privilege of review by appeal or writ of error in respect to judgments of the Municipal Court. The power of the legislature in that respect is subject to but slight restriction. The legislature provided for review of the judgments of the Municipal Court of the fourth class by way of writ of error. That is, the statute created the privilege, and specified the manner in which plaintiffs might avail themselves of the privilege, of the prosecution of this writ for the review of the judgment of the court below. Therefore, using the language of our Supreme Court, “This proceeding not being according to the course of the common law but statutory, merely, must be governed by the law prescribed for such proceedings. ’ ’ Hart v. West Chicago Park Comrs., 186 Ill. 464, 466, 469. The law requires either a particular “correct” statement or a particular “correct” report, before we are authorized to review.' May we, rightfully, assume any writing placed before us that may have attached the name of the trial judge to be either the one or the other of these instruments ? If we may not, why may we assume the writing now before us to be one of the required instruments?

When a privilege is given to persons by statute, such as the privilege here given of review of an adverse judgment, they are bound, in order to avail themselves thereof, to follow strictly the provisions of the statute. In such case the rule is strictissimi juris. Whatever the resulting inconvenience to the party, it is in such case, to be regarded as more than compensated by the privilege granted by the statute. The jurisdiction which this court exercises in a proceeding such as this proceeding in error is a special statutory jurisdiction, founded only upon the statute. This jurisdiction cannot be legally exercised except within the terms of the statute and upon such record as the statute prescribes. Where in a proceeding purely statutory the statute does not allow for the exercise of discretion in respect to the specified mode of procedure, the courts cannot rightfully interpose their discretion.

While statutory enactments may be perfected by necessary implications, i. e., such implications as may be found to be required in order to carry out the express provisions, courts may not, by implication, intendment or inference, add to or deduct from or change or vary the express provisions. A recognition by this court of the instrument involved in the present' motion as such a statement or such a report as the statute prescribes would be a disregard of the statute. We cannot indulge in the presumption that the instrument is what on its face it does not purport to be and what no one asserts it to be.

The motion to strike will be allowed.

Motion alloived.


source: Caselaw Access Project

author: Mr. Justice Mack

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Artesian Stone and Lime Works Company, Appellant.
    Gen. Nos. 14,439, 14,723.
    1. Decrees—ivhen hind state notwithstanding not a party. The People of the State are bound by a decree rendered against the city of Chicago with respect to easement rights in real property claimed by such city.
    2. Degrees—when clerical error disregarded. A clerical error in the decretal part of a decree in describing the real property affected will be disregarded if the true description intended is apparent.
    3. Decrees—when absence of pleadings does not affect competency. If the absence of the pleadings upon which a domestic decree is founded may be availed of as against its admissibility, a specific objecti'on to their non-production is essential to raise the question.
    4. Dedication—how question of, determined. The absence of street designations upon a recorded plat of the property in question is not alone sufficient to justify the court in finding against a common law dedication; the entire plat must be considered in determining the intention of the owner.
    14,439: Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed with finding of fact.
    Opinion filed July 9, 1909.
    14,723: Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed July 9, 1909.
    Enoch J. Price, John E. Waters and Verne A. Wright, for appellant.
    John J. Healy, for appellee; Daniel L. Cruice, of counsel.
   Mr. Justice Mack

delivered the opinion of the court in both cases.

On information filed in the Municipal Court of Chicago, the appellant was convicted, in each case, of a violation of section 221, subsec. 5 of the Criminal Code of Illinois which declares it to be a public nuisance “to obstruct or encroach upon streets,” and was fined $100 and $25 respectively.

The basis of the charge in case No. 14439 is the maintenance of a fence in the space alleged to be a part of Campbell avenue, between the solid line just west of the dotted line marking the east boundary of Block 7, and said dotted line, and in case No. 14723 the maintenance of a fence and buildings in the space, alleged to be Ohio street, between the solid lines in blocks 7 and 10, north and south respectively of the dotted line dividing said lots; all in Wright and Webster’s subdivision of the N. E. 14 of S. 12, T. 39 N., E. 13 E. of the 3rd P. M., in Cook county, Illinois, as shown on the plats recorded as follows:

Subdivision by Edward Wright and Joseph D. Webster. Map, acknowledged July 20, ^1852, and recorded July 20, ”1852, in Book 49 of Maps, page J 20.

Subdivides the N. E. 14 of Section 12 T. 39 N. B. 13 E. of 3rd P. M. into 16 Lots or Blocks and Streets.

Said map is as follows:

The dimensions marked in acres under each block number include the spaces between the solid and dotted lines: the dotted lines form the boundaries of the blocks; all measurements noted except those marked 1.00 and .50 are of the spaces between the dotted lines.

The defendant introduced in evidence a decree rendered in the Circuit Court of Cook county in 1896 in a cause wherein appellant’s predecessors in title were complainants and the city of Chicago was defendant. By this decree, after reciting that the cause came on to be heard on bill, answer, replication and master’s report, and finding that the complainants are the owners of so much of the alleged Campbell avenue as is involved in case No. 14439 and of the north 33 feet of the alleged Ohio street; that such spaces are a part of block 7; that they are unburdened with any easement or servitude whatever; that they are not and never have been public highways; that the city of Chicago or the general public or any other person or persons have not acquired any right, by dedication, user or prescription or otherwise, to use said pieces of land or either of them as public streets or highways and that they are not and never have been public streets or highways, the court decreed in accordance with the findings and perpetually enjoined the city from claiming said premises, as a public street or from interfering with the complainants’ possession thereof.

Under the decision in Healy v. Deering, 231 Ill. 423, it must be held that the decree against the city of Chicago, introduced in evidence, is binding upon the people of the State of Illinois. The city of Chicago, as trustee for the people, either as claimant of the fee, under a statutory dedication, or as claimant of an easement, under a common law dedication (Maywood Co. v. Village of Maywood, 118 Ill. p. 61, at p. 71), fully represented the public in the proceedings and both are equally bound thereby.

The Supreme Court says in Healy v. Deering, supra, at page 430: “A city’s relation to its streets and alleys is that of trustee for the use and benefit of the public, and in legal proceedings where the existence of a public street is involved the public may be represented by the city or by the Attorney-General or the State’s attorney. If a suit is instituted by an individual to establish the title to and recover the possession of land claimed by a city to be a public street, it is not necessary that both the city and the people of the state should be made parties to the suit in order that the judgment may be binding upon the public. Neither is it necessary in an action to establish the existence of a public street that the people of the state and city should join as plaintiffs. In such case, where the city is a party, it is the representative of the public. The people of the state are privies, and a judgment not the result of fraud and collusion is binding upon the people.”

Appellee contends that this decree was improperly admitted in evidence and. cannot now be considered: first, because of the failure to offer in evidence the pleadings on which it was based; second, because, in the decretal part, the property is described as being in range 12 instead of in range 13. The property, however, is not only correctly described in the findings of the court, but moreover it is shown that no piece of land would fully answer the complete description contained in the decretal part. The mistake is evidently purely clerical and may, under the circumstances, be disregarded.

Whatever be the correct rule as to the'necessity of introducing the entire record in a suit on a foreign judgment (see McMillan v. Lovejoy, 115 Ill. 498) or in support of the defense of res ad judicata (3 Wigmore Evidence, sec. 110, n. 2), this objection, if valid, must be specifically made at the trial. Chamberlain v. Britton, 136 Ill. App. 290; affirmed in 234 Ill. 246. The admissibility of the decree was objected to by appellee only on other grounds which were properly overruled.

Inasmuch as this decree covers the entire property alleged to be encroached upon in case No. 14439, and, as against the appellee, determines that the space in question is not a public street, the judgment in case No. 14439 must be reversed with a finding that the defendant therein is not guilty of the offense charged in the information.

In case No. 14723 the appellant contends that the decree, in finding the north thirty-three feet of the alleged Ohio street not to be a public street, necessarily determined also that the south thirty-three feet (which was not directly involved in the chancery proceedings) is not a public street. It is true that in O’Connell v. C. T. R. R. Co., 184 Ill. 308, the court held a former decree, denying the existence of a high way over lots 3 and 4, to be admissible in favor of the owner of the adjoining lot 5, but in that case the defendant’s rights depended upon establishing the existence of a highway over all three of the lots.

We cannot determine from the decree alone, which was offered in evidence in the present case, that because of the finding of the court against the existence of a street in the south thirty-three feet of block 7, it necessarily follows that the north thirty-three feet of block 10 is equally free from any public easement, however likely it may be that the court would have so found, had the question arisen in those proceedings.

An inspection of the recorded plat shows the absence of any street designations but, as is clearly pointed out in People v. C. & N. W. Ry. Co., 239 Ill. 42, this alone is not sufficient to justify the court in finding against a common law dedication. The entire plat must be studied in determining the intention of the owner. Now in this subdivision, it will be noted that the spaces between the solid lines running north and south are marked as one chain in width, but the width of the space here in question, the alleged Ohio street, is not given. Inasmuch as the marked acreage of blocks 7 and 10 includes this space, it is impossible to determine from the map itself how wide the alleged street is. Unlike the space in People v. C. & N. W. Ry. Co., supra, there is no natural boundary line, like the river, on one side, and no lot of given dimensions on the other. Whatever might have been the view of this court but for the chancery decree, as to the dedication of the space between blocks 7 and 8, marked one chain, we cannot find any dedication of the alleged Ohio street. Neither from the drawing of a solid line at some distance north and south of the dotted line marking the boundary between blocks 7 and 10, nor from anything else in the plat, can we find any intention that the space between said lines should be of any specified width.

In the absence of any evidence, by which either the width or at least the boundaries of the alleged street can be fixed, and in the absence of any evidence of the owner’s intention other than the recorded plat may show, we are constrained to hold that there is no evidence of a dedication of the space in question.

The judgment in case No. 14723 will be reversed and the cause remanded.

Reversed with finding of fact as to 14439.

Reversed and remanded as to 14723.


text:
    Womans Temperance Building Association, Appellant, v. Anna Evans Devore, Executrix, Appellee.
    Gen. No. 15,380.
    Appeals and eebobs—when suggestion of diminution may he made after second day of term of Appellate Court. A suggestion, of diminution made after the second day of the term to which the appeal is filed will be considered and acted upon, by the court if the clerk in making up his transcript pursuant to praecipe has not obeyed such praecipe.
    Appeal from the Circuit Court of Cook county; the Hon; John A. Gbay, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Motion allowed.
    Opinion filed July 16, 1909.
    Edwin Terwilliger, Jr., for appellant.
    Fred A. Bangs, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

The certificate attached to the record filed in this cause reads that it is “a true, perfect and complete transcript of the record according to prsecipe.” Turning to the prsecipe, which is included in the record, we find that it reads: “Please prepare a complete transcript of the record in the above entitled cause for use on the appeal in the Appellate Court of Illinois in and for the First District, and include therein all pleadings, * * * orders and proceedings herein relating to the said, principal defendant Mutual Deserve Contract Company and Anna Evans Devore, executrix * * * garnishee, to-wit:” followed by list of documents, orders and dates. Then comes-. “Please omit from said complete abstract the answers * * * orders and proceedings against the other garnishee defendant in the above entitled cause, to-wit:” followed by a list of documents, orders and dates.

The record begins with the convening order of November 16, 1908, but omits the convening order of the term of court at which the judgment against the principal defendant was rendered. Appellant now suggests diminution of the record and asks for leave to supply the omissions. Appellee objects and suggests in opposition that when a record is certified not to be complete but according to praecipe, omissions due to the failure of appellant, in the praecipe, to direct their inclusion, cannot be supplied on appellant’s motion unless motion therefor be made on or before the second day of the term, citing authorities therefor. In our judgment, this principle, while correct, has no application to the facts in this ease. The praecipe in this case directs a complete transcript of the record to be made, and then particularly directs that certain things shall be included. The specification of that which is to be included is, however, only by way of emphasis and does not involve an exclusion of everything else. It is as if the praecipe had read: “The clerk is directed to make a complete transcript and is particularly cautioned not to forget certain things, to-wit:”

The order to make the transcript a complete one is, it is true, modified by the last paragraph of the praecipe, which directs that certain things shall be omitted. The language here used to “omit from said complete transcript” certain documents, only confirms the interpretation given to the first paragraph, that is, that what is ordered is to be a complete transcript except for the things specifically directed to be omitted.

It was therefore the duty of the clerk to include everything not directed to be omitted, and the appellant is not responsible for the failure of the clerk in this respect.

Appellee suggests, however, that “the praecipe which is set out in the record is not a part of the record, not being certified by the clerk to be a true copy of the praecipe filed.” Ño authority is cited for this statement. In our opinion the certificate of the clerk is sufficient to include in the record the praecipe certified to have been filed.

The motion for leave to supply omissions will therefore be allowed.

Motion allowed.


author: Mr. Presiding Justice Smith

text:
    Louis Krisch, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,579.

      Streets—what not, so as to charge municipality for injury occurring upon. The permissive use of a strip of land as a street does not legally constitute it such so as to render a municipality liable to an action for an injury resulting because of the disrepair thereof; in order to charge a city with liability for failure to care for an alleged public street, both dedication and acceptance must be proven.
    Baker, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908. Rehearing denied June 29, 1909.
    Reversed with finding of fact.
    Opinion filed June 15, 1909.
    Statement hy the Court. The city of Chicago, appellant, prosecutes this appeal to reverse a judgment of the Circuit Court rendered against it and in favor of Louis Krisch, appellee, for damages for injuries claimed to have resulted from negligence of appellant respecting one of its streets.
    The evidence in the record tends to show that a certain roadway, called Loomis street, runs north and south between Twenty-second street and the Chicago river in the city of Chicago, that it is not intersected by any other street. It is a roadway between lumber yards. There is a plank footway on the west side of the roadway. A few feet south of Twenty-second street, the roadway is crossed by four railroad tracks. About three hundred feet further south two switch tracks enter the roadway from the east. One of these switch tracks extends south along the east side of the roadway, and the other crosses the roadway and runs south along the west side of it to a point about 175 feet south of the yard of J. C. Deacon & Co. From the track on the east side of the roadway opposite to Deacon & Co.’s yards, a switch track extends southwesterly across the roadway, until it reaches a point about 175 feet south of Deacon & Co., and then it runs along the west side of the roadway to the Chicago river. The roadway between the tracks was planked, and the space between the rails of the track which crosses the roadway opposite Deacon & Co.’s yard was also planked.
    The plaintiff was a teamster in the employ of Armour & Co. and was driving one of its wagons along this street or roadway. He fell from the wagon and was injured. He claims that his fall was caused by one of the wheels of the wagon running into a hole in the plank roadway near the switch track last above mentioned. This claim is controverted by appellant.
    The jury returned a verdict on the trial below against the defendant, finding the defendant, appellant, guilty and assessing the plaintiff’s damages at $5,000. After overruling defendant’s motion for a new trial and in. arrest of judgment, the court entered judgment on the verdict.
    Edward J. Brundage and John B. Caverly, for appellant; Edward C. Fitch and R. W. Donovan, of counsel.
    Brady & Levy, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The record in this case presents two controlling questions of fact. The first of these questions is, did the negligence of the city in failing to exercise reasonable care to keep the alleged street in a reasonably safe condition for travel cause the injuries suffered by the plaintiff?

The plaintiff and his only witness,.Mike Molle, who saw the accident, testify that one of the front wheels of the wagon which the plaintiff was driving went into a hole in the planking in the second track from Twenty-second street, and the plaintiff fell off his wagon and was injured. The witness Melle does not locate the hole in the planking definitely, except to say that it was fit or near a railroad crossing in Loomis street, where one track crossed the street. He apparently locates the hole alongside the west rail of the track at the crossing nearest the river, or the third crossing south of Twenty-second street. This crossing is nearly a thousand feet south of the place described by the other witnesses in the case. If he meant to lpcate the hole at this crossing, he is clearly mistaken in. his recollection. The plaintiff himself locates the hole which he drove into at the second track from Twenty-second street, counting the tracks running straight across Loomis street near Twenty-second street as the first crossing. This would locate the place of the accident about three hundred feet north of Deacon & Co.’s office. In thus locating the place of the accident the plaintiff contradicts the testimony of every other witness in the case, and locates the place of the accident about fifteen hundred feet north of the place designated by his witness Molle.

The evidence in the record shows that there are three diagonal railway or switch tracks across the roadway of Loomis street, so called, between the river and the tracks just south of Twenty-second street. We think the most reliable evidence in the record shows that the front wheel of plaintiff’s wagon struck the south rail of the second of these crossings, and instead of passing over that rail directly, it slid along the inside of the rail ten or fifteen feet to the right and then went out of and over the track. By means of this action of the wagon plaintiff was jolted or thrown from his seat and fell upon the pole of the wagon, upon which he was borne along some distance until he fell to the ground and was run over in front of Heath & Wlfitbeck’s office. The testimony of Mary Schindl, Joseph Stasny, Frank Prchal and John Linhart supports this view of the case, and the manner in which appellee was thrown from his seat and the cause of it. Immediately after the accident Linhart, Pitzeck, Stasny, Gagne and Prchal went to this cross track and inspected it and the roadway. They saw the wheel marks where the soft earth was pushed up against the rail by the sliding wheels. They testify that the roadway at that time was made of hardwood planks three inches thick, in good sound condition, and that the roadway was free from holes. Where this track runs across the roadway, the plank were laid up to the rails, and the space between the rails was also planked, the planks there running lengthwise with the rails. After the tracks passed across and beyond the roadway there was no planking between the rails. It was on this part of the track to the west of the roadway that the wheels of the wagon slid along what was then the south or east rail of the track.

The preponderance of the evidence shows, we think, that the planked roadway was in good condition and free from holes; and that the allegations of negligence in the declaration are not proven.

We are furthermore of the opinion, from a careful examination of the record, that the evidence fails to show that the roadway, called Loomis street, where the accident occurred, was a public highway over which appellant had a right or authority to exercise supervision and control. We find no evidence of a dedication of the strip of land designated in the record as Loomis street, or of an acceptance of it as a street by appellant. City of Chicago v. Borden, 190 Ill. 430. From all that appears in the evidence the use of the strip of land as a street was simply permissive and for the benefit of the adjoining lumber yards as a private way. The use of it as such and the use of it by others for the time indicated by the proof in the record, would not make it a public highway or amount, to proof of a dedication. White v. Bradley, 66 Me. 254. Mere travel by the public does not, of itself, constitute an acceptance by the municipality. Forbes v. Balenseifer, 74 Ill. 183. But long-continued and general public use may be sufficient to prove an acceptance by the city authorities for public use, as a question of fact. In order, however, “to charge a city with liability for a failure to care for an alleged public street, as in this case, both the dedication and an acceptance must be proved.” City of Rock Island v. Starkey, 189 Ill. 515.

The evidence in the record, in our opinion, fails to show a dedication of the road in question for a public street and an acceptance of the same by appellant or by those authorized to represent it or the public. Hence, the plaintiff has failed to prove the allegation of his declaration that appellant was bound to maintain the roadway in question and its neglect of duty in that regard.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.

Mr. Justice Baker dissenting.


text:
    Annie Lifschitz, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,575.
    1. Streets—hoio notice of disrepair of, must be shown. In order to show actual notice to a municipality of the disrepair of a public street, it must appear from the evidence that notice of the defective condition of the sidewalk was brought to an officer or agent of the municipality charged with a duty respecting it. The admission of evidence of notice to an officer or agent not charged with such a duty is error which will reverse even though there was like proof of constructive notice.
    2. Instructions—when erroneous cannot be cured by other instructions given. An instruction which directs a verdict cannot be aided or corrected by other instructions in the same series.
    3. Instructions—when upon liability of city for negligence erroneous. An instruction which imposes upon a municipality the duty to use reasonable care and diligence “to keep such sidewalk in good repair and condition” is erroneous as imposing upon such municipality a higher degree of care than the law requires.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dtjpuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909. Rehearing allowed June 25, 1909. On rehearing reversed and remanded and opinion refiled July 9, 1909.
    Reversed and remanded.
    Opinion filed June 4, 1909.
    Edward J. Brundage, Corporation Counsel, and John R. Caverly, City Attorney, for appellant; Edward C. Fitch, of counsel.
    Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of the Superior Court in favor of appellee against appellant, City of Chicago, for damages for alleged injuries claimed to be the proximate result of negligence of appellant respecting a sidewalk.

The declaration consists of two counts. It alleges that on August 1,1905, the city was possessed of a certain public street, known as Loomis street, which intersected Fourteenth street, also a public street; that the city permitted the sidewalk at the said intersection to be and remain in an unsafe condition. The first count alleges that the city permitted large apertures, holes and furrows to .be and remain in the sidewalk on Loomis street at said intersection, which the city well knew, or by reasonable care could have known, but appellee did not know of such defects, and by the use of reasonable care could not have known of them, and while exercising due care appellee stepped into one of said holes and was injured.

The second count avers that the city permitted certain planks forming the sidewalk on or about the intersection of the sidewalk on Loomis street with the sidewalk on Fourteenth street to become and remain rotten, weak, unsafe and insufficient to bear the weight of pedestrians and persons using said sidewalk; and that appellee, while using due care, by reason thereof, fell through and was thrown upon the sidewalk with great force and injured.

Both counts allege the service of notice upon the city advising it of the accident and the time and place thereof and of the residence of appellee, and of the names and residences of her attending physicians.

Errors are assigned upon the admission of testimony offered by appellee over the objections of appellant, and upon the giving to the jury certain instructions requested by appellee.

For the purpose of showing notice of the alleged unsafe condition of the sidewalk where appellee was injured, to the city, appellee produced the witness Hackner, a druggist at the corner of Loomis and Fourteenth streets, who was permitted to testify that he had a conversation with a man by the name of Rosenberg, a sidewalk and alley inspector of that ward, about two weeks prior to August 1, 1905, regarding the condition of the sidewalk, and that he called Rosenberg’s attention to the condition of the sidewalk and told him that it ought to be repaired. This testimony was received over the objection of appellant ; and a motion was made by appellant to "strike out the testimony of Rosenberg on the ground that there was no proof that it was Rosenberg’s duty to report defects in sidewalks to the proper city officials, or that he was a sidewalk inspector. The court denied the motion, and also denied the motion to strike out his testimony as to the location of Ward 10 of the city. On cross-examination Hackner said he knew Rosenberg was the inspector because he had been told so, and had seen him performing his duties.

Appellant produced the public records and the testimony of their custodian which showed that Rosenberg was only a laborer on street repair work, and sometimes had charge of a gang of men, and that he was not an inspector or an official. This was supplemented by the testimony of Sima, the ward superintendent for that ward.

But the testimony of Hackner considered by itself, and without reference to the testimony offered by appellant, cannot be considered as admissible for the purpose of showing notice, for it falls far short of containing the necessary elements to prove that Rosenberg was an officer of appellant charged with a duty concerning the sidewalk. Neither his official character nor the existence of the office is shown. The testimony is not aided or supported by the ordinance subsequently introduced by appellee. It must appear from the evidence that notice of the defective condition of the sidewalk was brought to an officer or agent of the city charged with a duty respecting it, in order to constitute actual notice to the city. Looney v. City of Joliet, 49 Ill. App. 621, 625; City of Joliet v. Looney, 56 Ill. App. 502; Ibid, 159 Ill. 471; Bouton v. McDonough County, 84 Ill. 384. It was material error to admit the evidence in the first place, and it was error to refuse to strike it out on the motion made immediately after its admission.

It is urged on behalf of appellee that, assuming the trial court erred in admitting the evidence offered to show actual notice to appellant of the condition of the sidewalk, such error is harmless, and is insufficient to reverse the judgment, because the proof of constructive notice to .appellant was conclusive, and justified the verdict rendered. We cannot agree with this contention. We cannot determine from this record upon which of these two independent lines of evidence the jury based its finding of notice. It may have been based solely upon the improperly admitted evidence: What influence this evidence had upon the jury cannot be known. The presumption is that it was considered by the jury. It was calculated to produce upon the minds of the jury greater effect than the evidence tending to show constructive notice only, and to divert their minds from that evidence. We cannot say, therefore, that the error in admitting it for their consideration was harmless.

Error is assigned upon the giving of the first instruction requested by appellee. Thé instruction reads as follows:

“If the jury believe from the evidence that the plaintiff, while using the sidewalk at or about the southwest corner of 14th and Loomis streets, in the City of Chicago, was injured as alleged in her declaration, and that the injury, if any, would not have happened to her if the said sidewalk had been in good repair and safe condition, and that the city did not use reasonable care and diligence to keep said sidewalk in good repair and safe condition, but negligently permitted said sidewalk to be and remain out of repair and in an unsafe condition in the respects charged in the plaintiff’s declaration, or either count thereof, and that said condition so remained for such a length of time that the public authorities of the City of Chicago, by the exercise of reasonable care and diligence, could and would have discovered and repaired the same; and if you further believe from the evidence, that the plaintiff, at and prior to the time of said injury, if any, was exercising ordinary care to avoid injury while using said sidewalk, then you are instructed that the defendant is liable in this action for such injury, if any, and you should find the defendant guilty.”

This instruction imposes upon the city the duty of using reasonable care and diligence “to keep said sidewalk in good repair and safe condition.” As the instruction directs a verdict it cannot be aided or corrected by other instructions in the same series. C. C. Ry. Co. v. Shreve, 226 Ill. 530; Pardridge v. Cutler, 168 id. 504. This instruction extends the obligation of the city too far. The duty imposed by law upon the city is to use reasonable care and diligence to keep its streets in a reasonably safe condition and repair for travel. City of Rock Island v. Gingles, 217 Ill. 185, 187. The instruction is erroneous in that it imposes upon the city a higher degree of diligence than the law requires.

The instruction complained of in City of Gibson v. Murray, 216 Ill. 589, 592, which the court pronounced defective, did not direct a verdict, and hence, the error was held to have been cured by another instruction given in the case. The instruction also contained the following clause immediately after the words complained of in the instruction,—“and by that means allowed it to become defective and unsafe. ’ ’ The court said with reference to this clause in the- instruction: “If the sidewalk was allowed to become defective and unsafe, the city had failed to keep it even in a reasonably good and safe condition.” Under such circumstances it was held that the defect in the instruction was not sufficient to authorize a reversal of the judgment. But, as we have said, the instruction before us in this case cannot be cured by the other instructions in the series, such as that above quoted, which necessarily modifies or corrects the error indicated. In our opinion the error in this instruction cannot be considered harmless in this case, in view of the evidence in the record.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Smith

text:
    Daniel J. Gillen, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,089.
    This case is controlled by the decision in Bullis v. City of Chicago, 235 Ill., 472.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed July 9, 1909.
    Edward J. Brundage, Clyde L. Day and Emil C. Wetter, for appellant.
    A. D. Gash, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This appeal is prosecuted by the city of Chicago, appellant, from a judgment of the Superior Court in favor of appellee, Daniel J. Gillen, in an action in assumpsit to recover of appellant an amount claimed to be due appellee for his salary as police patrolman of appellant.

The pleadings consist of the declaration containing the common counts and a special count and a plea of the general issue. The special count alleges various ordinances of the city of Chicago and a certain order of the city council, and that a certain number of offices of police patrolmen of the city of Chicago were created, and that appellee was appointed to one of said offices and still is a police patrolman of the city of Chicago and has a right to be paid as such officer.

The court is not aided in its consideration of this case by any brief and argument on behalf of appellee. The record in this case presents substantially the same material facts involved in the case of Bullis v. City of Chicago, 235 Ill. 472. The same ordinances, council order and civil service rules, which were before the Supreme Court in the Bullís case, are presented by this record, and are relied on by appellee to establish the existence of the office of patrolman of the city of Chicago, which appellee claims he occupied. No other ordinances, orders or civil service rules were introduced in evidence in this case than those which were offered in the Bullís case, and were passed upon in deciding that case. The Supreme Court in that case held that, inasmuch as it was not shown by proper evidence that the office of police patrolman had been created in the manner provided by law, there could be no recovery of salary for such office. This case is controlled by the Bullís case, supra, and therefore the judgment is erroneous. The ease was submitted to the trial court without a jury for trial. Judgment will be entered here accordingly.

The judgment of the Superior Court is reversed, and judgment in favor of appellant, city of Chicago, and against appellee, Daniel J. Grillen, for costs is entered in this court.

Reversed and judgment here.

Mr. Justice Mack took no part in the consideration of this case.