Burke v. City of Chicago

Mr. Presiding Justice Fitch delivered the opinion of the court. 2. Appeal and ebrob, § 966*—what matters not reviewed. Where plaintiff claimed that hut for the wrongful act of the City in rebating to property owners before paying the cost of the improvement it would have had on hand, applicable to interest payments, a sum sufficient to pay the interest on local improvement bonds held by him, defendant’s contention that it was liable to plaintiff only for his pro rataa share, with other bondholders, of the amount rebated, cannot be considered, where there was nothing in the stipulated facts upon which the case was tried, or in any part of the record, to show that there were any bonds outstanding and unpaid other than' plaintiff’s, or that any bond holder other than plaintiff had, or claimed to have, any interest in the special assessment fund in question. 3. Appeal and ebbob, § 906*—when matters incorporated in transcript not considered. An affidavit that the stipulated facts upon which the case was tried below were inadequate and did not contain all the facts necessary for the proper determination of the issues, appearing in the transcript of the record certified by the clerk but not in the bill of exceptions, is no part of the record and cannot be considered. 4. Appeal and ebbob, § 810*—how affidavits made part of record. An affidavit introduced before the trial court cannot be considered unless incorporated in the bill of exceptions. 5. Appeal and ebbob, § 907*—reference to affidavits in bill of exceptions. A reference in the bill of exceptions to an affidavit introduced before the court below does not operate to incorporate it therein. 6. Municipal cobpobations, § 1166*—burden of proof in action for interest on local improvement bond. In an action by the holder of local improvement bonds to recover interest unpaid thereon, on the ground that but for the wrongful act of the City in rebating to property owners before paying for the cost of the improvement there would have been on hand in the special assessment fund, applicable to interest payments, an amount sufficient to meet plaintiff’s claim, the burden is on the City to show that others had like claims against it, amounting to more than the funds available, before it could require plaintiff to pro rate with other creditors.