Seehausen Wehrs & Co. v. Interstate Steel & Iron Co.

Mr. Presiding Justice Chytraus delivered the opinion of the court. We are of the opinion that the instrument in question, which the clerk designates as a bill of exceptions, is not verified or attested, or even asserted, to be either such statement or report as the sixth item of section 23 requires and that, for that reason, it complies with the statute in neither substance nor form, and that, consequently, the motion to strike the same must be allowed. As a part of “the record to be considered” upon review, in these fourth class cases, the statute provides for the incorporation therein of a certain statement, which shall be a correct statement of certain matters and things, or of a certain report, which shall be a correct report of certain matters and things. The instrument here incorporated into the record is in nowise attested or verified to be either snch statement or such report. Neither is it stated, attested or verified to be correct, as either such statement or report. By no word or expression to be found in either the instrument itself or in the record elsewhere does the trial judge assert anything, or assume any responsibility, as to the instrument being a full and correct statement of the facts in the case, of all questions of law involved and the decision of the judge upon these questions, which elements the statute clearly contemplates shall appear when the statement method is followed. Of course, when neither the party preparing the statement nor his adversary desires to raise any question of law in the court of review, then that feature of the statement may be omitted. When the statement method is followed, the adversary has no opportunity to supply an additional statement of the facts or questions of law that he may desire to have appear, as he has, by the express terms of the statute, when the report method is followed. Hence there is a greater necessity for certainty or assurance to this court, when the statement method is adopted than when the report method is followed, that the statement of the facts, or, when the facts are in sharp controversy, of the condition of the case in respect to the facts, be full and complete as well as correct. The instrument before us, however, purports to be neither a complete and correct statement of the facts nor a correct stenographic report, and these are the only kinds of instruments the statute permits, as the foundation for judicial action by this court on review. Upon what legal ground or principle must this court regard a writing, signed and placed on file, to be something no one asserts it to be or what no one will assume the responsibility of saying that it is ? We do not believe in hampering or encumbering judicial proceedings with formalities. Decidedly the contrary. But proceedings, whereupon property interests of greater and of less importance to litigants depend, should, in principle, be founded upon some certainty in the records thereof. Licensing, and thereby encouraging, looseness in records to such a degree as to presume, without any one’s say so, that a fundamental record, or a part thereof, is correct, authentic and complete, would establish a practice dangerous in the highest degree. Who is responsible for the omission, in such case as this, if the insufficiency of the instrument has arisen because of an omission, and to whom, according to the principles of the law, must the omission be charged? Since the earliest period of the administration of law by the Supreme Court of this state it has been a rule governing our courts “that the bill of exceptions is not to be considered as a writing of the judge, but is to be esteemed as a pleading of the party,” and that “if liable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to be construed most strongly against the party who prepared it.” Rogers v. Hall, 4 Ill. (3 Scam.) 6. In that case the court threw the burden of responsibility for omission upon the appellant and said: “The party guilty of the omission must be the sufferer, and not the opposite party.” The rule was approved in McKee v. Ingalls, 5 Ill. 30, 34, and again in Cummings v. McKinney, 5 Ill. 57, 60, where the court expressed its regrets at being compelled to decide the case, in view of “the loose and unsatisfactory manner in which the bill of exceptions is made out.” In Wright v. Smith, 82 111. 527, the Supreme Court adhered to the rule and applied it in an instance where the bill of exceptions was silent in a certain particular. The record showed that on motion of plaintiff’s counsel all testimony relating to a chattel mortgage was excluded. Whether or not any reason was assigned for the motion did not appear. It was held that the silence in this respect required the court to assume that the reasons for the motion were not disclosed. So, in the case at bar, ‘absence of or silence in respect to any statement that the writing involved was such an one or held such contents as the statute required does not justify the assumption or presumption that the contents are such. In Redfern v. McNaul, 179 Ill. 203, the rule of Eogers v. Hall was approved, and, there being a conflict of statement in the bill of exceptions, the court held: “One statement is entitled to as much weight as the other, and the bill of exceptions being the pleading of appellant, he is responsible for the contradiction and it is to be construed against him.” It is our opinion that when the statement method provided for, in item sixth aforementioned, is followed it must affirmatively be made to appear by certification or upon the face of such statement that it is full and complete in respect to the statutory requirements as herein pointed out. As the caption of the instrument before us contains the statement that .“the following proceedings were had,” it may be conceded that correctness must be implied, in so far as “proceedings” are shown by the instrument. Even that concession does not make the instrument such a statement as the statute requires as a foundation for action by this court. An attestation that the proceedings appearing in the instrument are correctly shown is not the equivalent of an attestation, as required, that the instrument is a “correct statement * * * of the facts appearing upon the trial,” etc. That the instrument, incorporated by the clerk into the record, is such statement as the statute requires must not be left to conjecture, presumption or assumption, but must be shown by proper authentication or attestation. The fact of the instrument being the statement or the report the statute requires cannot be regarded as of less importance than the signing thereof within proper time. In Burst v. Wayne, 13 Ill. 664, it was held, in respect to the taking and signing of the bill of exceptions in proper time, that it must appear on the face of the bill, affirmatively, that it was taken and signed in proper time. This rule has since been followed in several cases, for instance, Traction Co. v. Hansen, 125 Ill. App. 153, 157, and is well established. Upon the principle and authority of the cases hereinbefore cited this court, under the law, is prohibited from indulging, in favor' of plaintiff in error, in the conjecture or assumption that the instrument here involved is, what it does not even purport to be, a statement or a report such as the statute expressly requires. This newly enacted statute dispenses with the taking of exceptions to the rulings and decisions of the court in fourth class cases and provides for a review without them. There is, therefore, no occasion for a bill of exceptions in cases of this class. Eecognizing, however, the necessity that a record must be made up for the submission of the questions involved to the reviewing court in some form, the statute substitutes for the bill of exceptions two methods, that is, a statement for preserving “the facts,” “all questions of law involved” and “the decisions of the court upon such questions of law,” or a correct stenographic report. Whichever may be adopted, a statement or a report, it is, as where a bill of exceptions is used, to be prepared and presented by the party desiring it for use. The statute eliminates the bill of exceptions in the fourth class cases and in express terms prescribes that the manner of prosecuting this statutory writ of error shall be by the use of a statement of a certain character or of a report of a certain character to be prepared by a party and signed and filed by the trial judge. A different situation arises, owing to these new statutory enactments, but, as near as the altered circumstances will permit, the statement or the report performs the office of the eliminated bill of exceptions. By clear analogy to the rule in respect to bills of exceptions, the statement or report must be regarded as the pleading of the party preparing and tendering it, and upon that party alone rests the responsibility for omissions. The view being adopted that the particular instrument here involved is not such a statement or report as the statute contemplates, then it follows, necessarily, that there is in this record no such statement and no such report as the statute requires. This court then, if it considered the case upon the incompetent instrument in the record, would, indeed, be denying to defendant in error that due process of law which both the state and the federal constitutions guarantee to him. We have no warrant of law for reviewing the judgments of the Municipal Court, certainly none for reversing that court, upon a representation of the proceedings therein other than or different from the land and manner of record the statute prescribes. Unquestionably the legislature had the power to grant, regulate and control the privilege of review by appeal or writ of error in respect to judgments of the Municipal Court. The power of the legislature in that respect is subject to but slight restriction. The legislature provided for review of the judgments of the Municipal Court of the fourth class by way of writ of error. That is, the statute created the privilege, and specified the manner in which plaintiffs might avail themselves of the privilege, of the prosecution of this writ for the review of the judgment of the court below. Therefore, using the language of our Supreme Court, “This proceeding not being according to the course of the common law but statutory, merely, must be governed by the law prescribed for such proceedings. ’ ’ Hart v. West Chicago Park Comrs., 186 Ill. 464, 466, 469. The law requires either a particular “correct” statement or a particular “correct” report, before we are authorized to review.' May we, rightfully, assume any writing placed before us that may have attached the name of the trial judge to be either the one or the other of these instruments ? If we may not, why may we assume the writing now before us to be one of the required instruments? When a privilege is given to persons by statute, such as the privilege here given of review of an adverse judgment, they are bound, in order to avail themselves thereof, to follow strictly the provisions of the statute. In such case the rule is strictissimi juris. Whatever the resulting inconvenience to the party, it is in such case, to be regarded as more than compensated by the privilege granted by the statute. The jurisdiction which this court exercises in a proceeding such as this proceeding in error is a special statutory jurisdiction, founded only upon the statute. This jurisdiction cannot be legally exercised except within the terms of the statute and upon such record as the statute prescribes. Where in a proceeding purely statutory the statute does not allow for the exercise of discretion in respect to the specified mode of procedure, the courts cannot rightfully interpose their discretion. While statutory enactments may be perfected by necessary implications, i. e., such implications as may be found to be required in order to carry out the express provisions, courts may not, by implication, intendment or inference, add to or deduct from or change or vary the express provisions. A recognition by this court of the instrument involved in the present' motion as such a statement or such a report as the statute prescribes would be a disregard of the statute. We cannot indulge in the presumption that the instrument is what on its face it does not purport to be and what no one asserts it to be. The motion to strike will be allowed. Motion alloived.