Firemen's Insurance v. Horton

Mr. Justice Waterman delivered the opinion of the Court. The bill of exceptions in this case, as to what occurred upon the trial of the cause, contains the following: “ And the .court further certifies that said defendant, by its solicitor or otherwise, did not appear in court and argue or urge said motion for a new trial, but assented to the overruling by the court of said written motion for a new trial, without argument of the points set forth therein, and without reading, or in any way presenting, said grounds for a new trial to the court, and the court did not hear or see said grounds or written motion for a new trial.” On December 1, 1896, a motion was made to amend the bill of exceptions by striking therefrom the clause in which it was stated that the defendant assented to the overruling of the motion for a new trial. The court thereupon amended said bill of exceptions, and the clause referred to, so as to read as follows : “ And the court further certifies that said defendant appeared by its solicitor, but said solicitor did not argue or offer to argue said motion for a new trial, or any of the points stated therein, as grounds therefor, nor were said points or grounds of said motion for a new trial formally read or stated, or shown to, or considered by the court, but said motion was overruled and denied by the court without any argument in behalf of the defendant in said cause.” Appellee objected to this amendment; and a bill of exceptions, containing such objections and exceptions, and certifying what was before the court at the time of such amendment, was made. The court recites, in its bill of exceptions signed on December 1, 1896, that the order amending the said bill of exceptions “ was made upon the inspection of the record, including the bill of exceptions, and that no other evidence was offered by either party or heard or considered by the court on the hearing of said motion, or in the making and entry of said order,” Whether the court could, upon an inspection of the record that had been made at the March term, amend it at the December term, there not being in such record anything showing any mistake or misprision of the clerk, is a question we do not feel called upon to decide, as from an inspection of the record, as amended, it appears that there was no proper presentation of a motion for a new trial. A mere perfunctory motion, with mere perfunctory action thereon, is not such a presentation as entitled an appellant to the judgment of an Appellate Court upon the question of whether the court below did not err in overruling such motion for a new trial. Penn v. Oglesby, 89 Ill. 110; Alley v. Limbert, 35 Ill. App. 592; Smith v. Kimball, 128 Ill. 583; Clifford v. Drake, 110 Ill. 135; Brewer v. National Union Bldg. Assn., 64 Ill. App. 161. The judgment of the Circuit Court affirmed.