Caruthers v. Niblack

Mr. Justice Sears delivered the opinion of the Court. At the April term, 1894, of the Superior Court, a judgment was entered against plaintiff in error by confession, upon a promissory note, with warrant of attorney, made by her and one James P. Caruthers. At' the June term, 1897, of the court a motion was made by plaintiff in error to vacate the judgment, and for leave to plead. Affidavits were filed in support of the motion. The motion was overruled. To review the order overruling the motion, this writ of error is brought. Assignments of error numbered 1, 7, 8, 9, 10, 11, 12 and 13, all go to the entering of the judgment, are not well assigned, and hence can not be considered. The cognovit waived all errors. In such case a writ of error will not lie to review a judgment by confession. Little v. Dyer, 35 Ill. App. 85; Werkmeister v. Beaumont, 46 Ill. App. 369; Frear v. Commercial N. B., 73 Ill. 473; Hall v. Hamilton, 74 Ill. 437. The judgment was confessed in open court, and it is presumed that the authority to confess the judgment was passed upon by the court and found sufficient. Hall v. Jones, 32 Ill. 38. A bad declaration is cured by the confession of the judgment. Iglehart v. Chicago M., etc., Ins. Co., 35 Ill. 514. Nor can a variance between.the declaration and the note be availed of when judgment is confessed. Adam v. Arnold, 86 Ill. 185. The second, third, fourth, fifth and sixth errors assigned go to the order overruling the motion to vacate, and for leave to plead. To enable this court to pass upon the action of the trial court in thus ordering, it is essential that we have before us all the evidence heard by the court in support of the motion. In no other way can we determine what equitable grounds were presented to the trial court upon its consideration of all the evidence. Unfortunately the abstract here fails to show that all the evidence is preserved by bill of exceptions. Nor is it a fault in preparation of abstract, for the bill of exceptions as presented by the record, is insufficient, and does not purport to contain all the evidence. Courts of review will not, and in reason can not, base any judicial action upon evidence presented in part only, except it be upon the presumption that the evidence omitted was such as to justify the action of the trial court. Culliner v. Nash, 76 Ill. 515; Henry v. Halloway, 78 Ill. 356; Board of Trustees v. Misenheimer, 89 Ill. 151. We are .therefore compelled to decline to pass upon the sufficiency of equitable grounds as shown by such of the evidence as is brought here. The order of the Superior Court is affirmed.