Polowski v. Derengowski

Mr. Justice Ball delivered the opinion of the court. We cannot consider the contentions of appellant that the trial court - erred in rendering judgment against him, and in rulings upon proffered evidence, for the reason that the bill of exceptions does not contain the finding and judgment of the trial court, nor that any exception was taken to such finding and judgment, nor that a motion for a new trial was made. The rule is that in order to take advantage, on appeal, of an improper ruling of the court made during the trial, which does not relate to the pleadings, or does not appear on the face of the judgment, such ruling, with the exception thereto, must be preserved in the bill of exceptions. Martin v. Foulke, 114 Ill., 206; C. & E. I. Ry. Co. v. Schmitz, 211 Ill., 454. We cannot consider the exception to the finding of the court contained in the common law record. Salomon v. Ellison, 102 Ill. App., 419. The amount endorsed upon the justice summons in this case pursuant to section 20, chapter 79, R. S. Hurd, is $78. Such an endorsement has the same office and effect in a justice court as has the ad damnum in a declaration in a court of record. Each limits the judgment to the amount claimed and interest thereon. The judgment in this case is $90.50. But the error is a technical one, which, if called to the attention of the court on the trial could then have been corrected. This was not done, and thus the court was permitted unwittingly to enter a judgment in an amount largely exceeding the ad damnum on the summons. It is too late to raise this point for the first time in this court. Metropolitan A. Ass’n v. Froiland, 161 Ill., 40; Prairie S. L. Ass’n v. Gorrie, 167 Ill., 419; Wheatley, Buck & Co. v. Savings Bank, 167 Ill., 484; Doubet v. Peoria S. L. & T. Co., 93 Ill. App., 637. It is unnecessary for us to pass upon the motion to strike the bill of exceptions from the files. The judgment of the Superior Court is affirmed. Affirmed.