Kennedy v. Illinois Central Railroad

Appellate Court of Illinois

Kennedy v. Illinois Central Railroad

68 Ill. App. 601, 1896 Ill. App. LEXIS 573

DecidedFebruary 9, 1897

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Bluebook

Kennedy v. Illinois Central Railroad, 68 Ill. App. 601, 1896 Ill. App. LEXIS 573 (Ill. Ct. App. 1897).

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Opinion

Mr. Presiding Justice Shepard

delivered the opinion of the Court.

This action was brought to recover damages for the death of appellant’s intestate occasioned by the alleged negligence of the appellee.

At the conclusion of the plaintiff’s evidence the court, upon the motion of the defendant, instructed the jury that the plaintiff was not entitled to recover, and a verdict followed accordingly.

A motion for a new trial ensued and was overruled. Neither to the giving of the instruction, nor to the overruling of the motion for a new trial, was any exception taken, and the point is insisted upon by the appellee as fatal to the right of appellant to have a reversal, and it is fatal. It does appear by the transcript, made by the clerk, of the judgment record, that the plaintiff “ entered his exceptions herein,” but that was insufficient and did no good. Exceptions can only become matters of record'when certified by the trial judge.

The rule is inflexible that, without an exception preserved in the bill of exceptions, no ruling, however improper, that does not relate to the pleadings or appear on the face of the judgment can be reviewed in an appellate tribunal. Martin v. Foulke, 114 Ill. 206; James v. Dexter, 113 Ill. 654; City of Jacksonville v. Cherry, 39 Ill. App. 617; Fries v. Fries, 34 Ill. App. 142; City of Rock Island v. Riley, 26 Ill. App. 171.

We might cite many other cases.

The only assigned error that is argued is that which challenges the correctness of the action in giving the instruction we have referred to.

It was attempted, by a supplemental bill of exceptions to show that the peremptory instruction in favor of appellee was excepted to, but it was not accomplished.

Whether the trial judge properly refused to allow the alleged exceptions to be shown is not before us. Probably the question could only have been presented to us by a mandamus proceeding, which was not attempted.

The judgment is affirmed.

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Mr. Presiding Justice Shepard

delivered the opinion of the Court.

This action was brought to recover damages for the death of appellant’s intestate occasioned by the alleged negligence of the appellee.

At the conclusion of the plaintiff’s evidence the court, upon the motion of the defendant, instructed the jury that the plaintiff was not entitled to recover, and a verdict followed accordingly.

A motion for a new trial ensued and was overruled. Neither to the giving of the instruction, nor to the overruling of the motion for a new trial, was any exception taken, and the point is insisted upon by the appellee as fatal to the right of appellant to have a reversal, and it is fatal. It does appear by the transcript, made by the clerk, of the judgment record, that the plaintiff “ entered his exceptions herein,” but that was insufficient and did no good. Exceptions can only become matters of record'when certified by the trial judge.

The rule is inflexible that, without an exception preserved in the bill of exceptions, no ruling, however improper, that does not relate to the pleadings or appear on the face of the judgment can be reviewed in an appellate tribunal. Martin v. Foulke, 114 Ill. 206; James v. Dexter, 113 Ill. 654; City of Jacksonville v. Cherry, 39 Ill. App. 617; Fries v. Fries, 34 Ill. App. 142; City of Rock Island v. Riley, 26 Ill. App. 171.

We might cite many other cases.

The only assigned error that is argued is that which challenges the correctness of the action in giving the instruction we have referred to.

It was attempted, by a supplemental bill of exceptions to show that the peremptory instruction in favor of appellee was excepted to, but it was not accomplished.

Whether the trial judge properly refused to allow the alleged exceptions to be shown is not before us. Probably the question could only have been presented to us by a mandamus proceeding, which was not attempted.

The judgment is affirmed.

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68 Ill. App. 601, 1896 Ill. App. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-illinois-central-railroad-illappct-1897.

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