Marshall Field & Co. v. Nyman

Mr. Presiding Justice Barnes delivered the opinion of the court. Appellee has renewed his motion on additional grounds to strike from the files the stenographic report of the proceedings at the trial because, among other reasons, it is incorporated without warrant of law in the transcript of record filed on this appeal. The case is one of the fourth class, and presumably the original report was so incorporated upon the supposed applicability of the sixth subdivision of section 23 of the Municipal Court Act (J. & A. ¶ 3335), which directs the original report to be certified to the Supreme Court or Appellate Court, as the case may be, “as the record to be considered upon the review of the judgment by writ of error.” Whatever force, if any, may be given to this provision when a writ of error is sued out, it does not purport to relate to records on appeal. Section 100 of the Practice Act (J. & A. ¶ 8637) prescribes, as the basis of review on appeal, for the filing of authenticated copies of records of judgments appealed from. As said in Martin v. Todd, 211 Ill. 105, courts of review act upon the transcript of the record and not upon the record itself, except that an original bill of exceptions may be incorporated in the transcript by agreement. (Fees & Costs Act, p. 1356, Hurd’s Rev. St. 1916, J. & A. ¶ 5696.) There was no such agreement here, even if, as appellant contends, no distinction were to be made between a bill of 6 exceptions and a stenographic report. As, therefore, this case does not come within any exception to the statute requiring authenticated copies of records as the basis of review, and as said section 23 of the Municipal Court Act in no event relates to appeals, the original stenographic report will be stricken from the files, and the clerk of this court is directed, on request of appellant, to detach it from the transcript in this cause and return it to the clerk of the Municipal Court, where it belongs as a part of its record. (Martin v. Todd, supra.) Appellee also argues that said provision is unconstitutional, citing various cases holding similar provisions of said section invalid on the ground that they prescribe a different practice for review of Municipal Court judgments from that of other courts of record. (Israelstam v. United States Casualty Co., 272 Ill. 161, and cases there cited.) This particular provision has not been expressly passed on by the Supreme Court, though seemingly within the purview of said authorities. However, the judgment appealed from does not necessarily involve the validity of such provision. The motion presents a question that merely affects proceedings in this court, and that could not arise until the case reached here. (Taylor v. Kirby, 31 Ill. App. 658.) As stated, it is whether this court is governed with respect to transcripts of records of judgments appealed from by section 23 of the Municipal Court' Act or section 100 of the Practice Act and the statutory exception thereto. Of that we think there can be no doubt. As all the assignments of error, except one, are predicated on the stenographic report, the striking of the same eliminates them from consideration. That one assignment of error relates to the recital in the clerk’s record of two judgments. It is contended that the entry of the first in plaintiff’s favor was re$ judicata of a right to enter the second for defendant on his pleaded set-off.- In view of the authorization of two judgments on one demand, under section 55 of the Practice Act (J. & A. ¶ 8592), which, in the absence, of a contrary rule, is presumed to control in the Municipal Court (Wolfort v. David Lipsey Co., 189 Ill. App. 34), and as a set-off is a recognized method of defense (section 47, Practice Act, J. & A. ¶ 8584), we think the position, that the entry of the first judgment for plaintiff was an adjudication of the set-off, is untenable. (McKey v. Provus, 181 Ill. App. 364.) The judgment will therefore be affirmed. Affirmed.