Peters v. Darling

Mb. Presiding Justice Ball delivered the opinion of the court. Neither the abstract nor the bill of exceptions shows any exception to the action of Judge Kavanaugh in overruling the motion to quash the writ of certiorari. Hence the propriety of the order then entered is not before us upon this writ of error. A part}7, to avail himself of an exception to a decision of the Circuit Court, must take an exception at the time the decision is made, and the bill of exceptions must affirmatively show that it was taken at that time. E. St. Louis E. Ry. Co. v. Stout, 150 Ill. 9. It is true the common law record shows an exception to the overruling bjr Judge Kavanaugh of the motion to quash the writ of certiorari herein, but this is not sufficient. Such matters can only be made a part of the record, so as to be the subject of review in an appellate tribunal, by incorporating them in the bill of exceptions. Hersey v. Schaedel, 6 Ill. App. 188; LeFevere v. Watson, 70 Ill. App. 640; Thompson v. White, 64 Ill. 314. By submitting the cause for trial to the court, all prior errors, if any, going to the jurisdiction of the court were waived. When process by which-a court obtains jurisdiction of a cause is irregular, and no objection is made, the irregularity is waived. When a party appears generally in a case he thereby submits himself and his cause to the jurisdiction of the court, and it is too late afterward for him to object that he or his cause was not properly brought there. Had plaintiffs in error desired to test the right of the Circuit Court to issue the writ in this case, they should have stood by their plea, and taken exception to the action of the court in overruling the same. These things they did not do, but contested the merits of the case by plea and by trial. They were thereby estopped from afterward denying that they and their cause were not properly before the court. (Mitchell v. Jacobs, 17 Ill. 235.) It would be trifling with the courts and with the rights of parties to permit suitors, after voluntarily appearing and going to trial, to avail themselves of objections to the preliminary proceedings by which the cause or the parties were in court. (Randolph Co. v. Ralls, 18 Ill. 29.) In Hatterman v. Thompson, 83 Ill. App. 217, Hatterman, by certiorari, appealed to the Circuit Court from a final judgment rendered against him in a justice court. Thompson entered his appearance, and when the case was called for trial, made a motion to quash the writ of certiorari, which was overruled. Prior to that time the cause had beezn continued by agreement. The court say : “ By entering his appearance and asking a continuance, appellee waived his. right to have the writ of certiorari quashed. This mode of appeal is provided by statute. The Circuit Court had, by law, jurisdiction of the subject-matter, and the entry of appellee’s appearance gave it jurisdiction of his person, after which he should, at the earliest moment, have made his motion to quash. Instead of doing that, he waited until the cause was reached for trial, when he asked a continuance for one week, which was granted him, and the case set down for hearing. By this action he waived all irregularity in the method of appeal. The motion to quash goes to the jurisdiction of the court to entertain the appeal.” (Citing cases.) The defendant in error entered her appearance by the filing of her petition. The plaintiffs in error entered their appearance by filing what they call 11 a plea in abatement,” but which is a plea in bar. After this, by agreement of parties in open court, a jury was waived and the cause was submitted to the court for trial. The jurisdiction of the-Superior Court over the parties and the subject-matter was complete. In the course of the trial which followed, the plaintiffs in error told the court that they were not prepared to prove their cause of action, and rested their case. There then was nothing for the trial court to do except to find for the defendant in error. This he did. The judgment of the Superior Court is affirmed.