Lowther v. Eclipse Oil & Gas Co.

165 Ill. App. 438, 1911 Ill. App. LEXIS 202

• Court: Appellate Court of Illinois
• Decided: November 11, 1911
• Status: Published

Opinion

Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellant brought an action of replevin for the recovery of a lot of machinery which she alleged was wrongfully taken and wrongfully detained by appellees. Pleas were filed of not guilty; also alleging property in all the defendants, also in each of them, and upon issues being joined, a jury was waived and the cause tried by the court. The court found appellant was not entitled to the possession of the property and awarded a writ of retorno and adjudged the costs against appellant.

The alleged errors relied upon in this court are that the court erred in entering a judgment against the appellant on the ground the judgment was contrary to the law and the evidence and that the court should have sustained the motion of appellee, Eclipse Oil and Q-as Company, to withdraw its pleas and in not entering judgment against it under a stipulation entered into between said company and appellant wherein it was stipulated appellant should have a judgment against it for possession of the goods.

No exceptions are preserved in the bill of exceptions to the court’s finding and judgment. Where a cause is tried by the court without a jury and no exception is taken to the finding and judgment, error cannot be assigned thereon in this court. Such exception must appear in the bill of exceptions. David M. Force Mfg. Co. v. Horton et al., 74 Ill. 310; Bailey v. Smith, 168 id. 84; Dickinson v. Gray, 72 Ill. App. 55.

No propositions of law were submitted to the court. If it is desired to preserve in the record the rulings of the court as to the law applicable to the case where the trial is by the court without a jury, the trial court should be required by propositions submitted to give its holdings as to the law, otherwise the court of review cannot know there was error as to the law. Farwell v. Shove, 105 Ill. 61; Bank v. Haskell, 124 id. 587. Appellant iñ her brief makes no complaint of the rulings of the court on the admissibility of evidence and questions of law arising thereon are waived and not before us. The bill of exceptions does not show that it contains all the evidence. In such case it will be presumed the court heard other evidence and that it was sufficient to sustain the judgment. James v. Dexter, 113 Ill. 654.

The motion and stipulation and the court’s rulings thereon on the motion of the Eclipse Oil and G-as Company to withdraw its pleas are not preserved in the bill of exceptions and cannot be considered. Such motions will not be so considered unless so preserved. Gaddy v. McCleave, 59 Ill. 182.

In this condition of the record and bill of exceptions no errors of law or fact are presented to this court for review and the judgment will be affirmed.

Affirmed.