Schmidt v. Skelly

9 Ill. App. 532, 1881 Ill. App. LEXIS 201

• Court: Appellate Court of Illinois
• Decided: January 4, 1882
• Status: Published

Opinion

Bailey, J.

An insuperable obstacle in the way of our considering any of the errors assigned in this case is presented, by the fact that the record fails to show that any exception was preserved to any of the orders of which complaint is made. The record contains what is called a bill of exceptions, but that document contains no exception to any matter whatever. The only place in the entire record where mention is made of an exception, is in the order of the court overruling the motion to vacate the judgment, and there the clerk has recited that the defendant excepted to the ruling of the court in that behalf. The rule requiring the defendant to file a transcript, and the subsequent order dismissing the appeal for non-compliahce with that rule, do not appear to have been excepted to, and, as a necessary consequence, cannot be questioned here on appeal. Hartford Fire Ins. Co. v. City of Paris, 8 Bradwell, 181 ; Duncan v. Chandler, 5 Id. 499 ; VanCott v. Sprague, Id. 99.

Hor is the exception even to the decision of the court overruling the motion to vacate the order of dismissal, properly preserved. In VanCott v. Sprague, supra, we held that all motions and orders made during tlie progress of a cause, except such as belong to the record proper, must be preserved by bill of exceptions. Tested by the rules laid down in that case, the motion, as well as the decision and exception, were not a part of the record proper, and could only be preserved by bill of exceptions, so as to become a subject of review in this court. There being then, no question presented by the record which we can consider, the judgment will be affirmed.

Judgment affirmed.