Underwood v. Hossack

40 Ill. 98

• Court: Illinois Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

Per Curiam :

It appears from the record that three days were allowed within which the plaintiff in error might file his bill of exceptions*

The bill of exceptions is copied into the transcript, but appears not to have been actually filed until some time after the three days had elapsed. We have held that where a party presents his bill of exceptions to the judge within the time prescribed for its being filed, he has complied with the rule so far as it is in his power to do so, and he is not to be prejudiced because the judge may not actually sign the bill until after the time so fixed has expired. The judge having signed this bill of exceptions, we will presume that he would not have done so, unless it had been presented to him in proper time. The mere fact that it was not filed within the time, does not rebut that presumption; but the defendant is at liberty to do so by showing such not to have been the fact; until that is done, the bill of exceptions will be regarded as having been filed in good time. But if the case were different, as a matter of fact, we could not help the plaintiff under this motion, as this court cannot direct that to be made a matter of record which was not made so in the court below.

Motion denied.