Eckels v. Wolf

55 Ill. App. 310, 1894 Ill. App. LEXIS 413

• Court: Appellate Court of Illinois
• Decided: November 12, 1894
• Status: Published

Opinion

Mr. Justice Gary

delivered'the opinion of the Court.

This is an action of forcible detainer, appealed by the plaintiff in error to the Circuit Court, from a judgment of a justice.

The bill of exceptions shows that the plaintiff in error, who was defendant below, objected to the impaneling of a jury, on the ground that the justice, and therefore the Circuit Court, had no jurisdiction; and his position on that matter is, that there being no legal service of the summons, and the judgment before the justice being by default, jurisdiction failed. The appeal gave the Circuit Court jurisdiction, if the justice had jurisdiction of the subject-matter. Ohio & Miss. R. R. v. McCutchin, 27 Ill. 9. There is nothing in that objection. The absence of a complaint defeats the jurisdiction. Stolberg v. Ohnmacht, 50 Ill. 442. Here there is a complaint.

The other question in the case involves the construction of a lease from the defendant in error to the plaintiff in error. _ The bill of exceptions, as contained in the record, shows the beginning of the testimony, occupying about half-of page 47. Then page 48 is a notice and page 49 a lease. Page 50 goes on with the testimony, until about two-thirds of the way down is this: “ Mr. Saylor: I offer the two in evidence, lease and five day notice (here insert same).”

Then the testimony is resumed. There is in the bill no statement that pages 48 and 49 are the papers meant by ‘‘ here insert same.” Mo identity is shown. Mor is there any statement in the bill that those papers were offered in evidence.

We have been over this subject many times, always with the same conclusion, that such a bill of exceptions does not bring the papers before us. The last case is Imperial Hotel v. Claflin, decided at this term. We can not review the case upon its merits. The judgment is affirmed.