Salomon v. Ellison

Mr. Justice Ball delivered the opinion of the court. This action was assumpsit upon a written guaranty. The plea was the general issue. Trial, and verdict finding the issues for plaintiffs (appellees), and assessing their damages at the sum of $750. The bill of exceptions shows no motion for a new trial, nor any exception to the action of the trial court in overruling such motion, if one was made. The attorneys for appellant say in their brief : “ We contend that the writing in question is a mere proposal and not a contract of guaranty; that the burden is upon appellees to prove that appellant had notice of the acceptance of this alleged guaranty, and that this proof is a condition precedent to their right to recover.” There is no direct mention in such brief, or in their reply brief, of any errors in the admission or in the exclusion of evidence, nor of the propriety of the giving or of the refusing of any instruction. In other -words, the entire argument of appellant in this court is upon the merits. A motion for a new trial and an exception to the order of the court overruling the same is prerequisite to a consideration, upon appeal, of the sufficiency of the evidence to support a verdict. Dearborn v. Rielly, 79 Ill. App. 281-283. According to the practice in this State, the only mode in which a motion for a new trial and the rulings of the court thereon can be preserved in the record, is by incorporating them ih the bill of exceptions. That the clerk of the trial court has incorporated in the record what purports to be a motion for a new trial does not bring it within the range of judicial observation. Harris v. People, 130 Ill. 457, 463. The judgment of the trial court will be affirmed.