{
  "id": 5442057,
  "name": "Jerome Koscal, by Wendel Koscal, Appellee, v. Sidney Wolfson and Henry Wolfson, trading as Wolfson & Company, Appellants",
  "name_abbreviation": "Koscal v. Wolfson",
  "decision_date": "1919-10-10",
  "docket_number": "Gen. No. 24,568",
  "first_page": "1",
  "last_page": "4",
  "citations": [
    {
      "type": "official",
      "cite": "215 Ill. App. 1"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "266 Ill. 548",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        4786703
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/266/0548-01"
      ]
    }
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    "word_count": 1251
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  "last_updated": "2023-07-14T17:59:29.997324+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Jerome Koscal, by Wendel Koscal, Appellee, v. Sidney Wolfson and Henry Wolfson, trading as Wolfson & Company, Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Barnes\ndelivered the opinion of the court.\nThis is an appeal from a judgment of the Municipal Court for $1,000 in favor of the plaintiff in a personal injury suit. The errors assigned are based upon what is contained in the, bill of exceptions only, which the plaintiff has moved to strike from the transcript of record because not signed in due time by the trial judge. The facts on which the motion rests are as follows:\nThe time allowed for filing \u2022 the bill of exceptions expired July 3,1918, when it was marked as presented to one of the judges of said court, and ordered to be filed. The certificate to its completeness and correctness is dated and signed as follows: 1 \u2018 Dated this third day of September, 1918, nunc pro tunc July 3, 1918.\u201d Appended is a statement certified to by the trial judge on September 24, 1918, to the effect that when the bill of exceptions was so presented he was outside the State \u201ctaking a much needed rest\u201d and so \u201cunable\u201d to hold court and sign such instruments; that defendant showed due diligence in seeking to present the said bill and report to him for signature, and that he directed by long-distance telephone that the judge to whom his cases were assigned should sign for him.\nThere is no order of court in the transcript of record bearing on this subject except that above referred to directing the bill of exceptions to be filed on the date it was presented. But the filing of it was unavailing unless it was properly signed as of said date. It was not enough to that end that the trial judge signed it at a subsequent date using the words \u201cnunc pro tunc July 3, 1918,\u201d when there was in fact no order to that effect and nothing apparently upon which it could be based.\nThe facts are similiar to those in People v. Rosenwald, 266 Ill. 548. In that case the bill of exceptions was presented within proper time to another judge of the court in the absence of the trial judge, who after the time for presenting the same for signature had elapsed signed it, reciting that it was done nunc pro tunc as of the date it was presented to the other judge,. The court held that if the trial judg\u2019e had signed the instrument as of the date it was presented in the absence of any evidence showing that it was signed on a different date without authority, it would be presumed he had authority so to sign; but where it was at a later date after the time for signing had expired, and there was nothing on which to base a nunc pro tunc order, then a recitation or order that it was done nunc pro tunc was unavailing and unauthorized under our practice. The court said: \u201cIf a nunc pro tunc order is entered there must be sufficient in the record itself to show affirmatively that the trial judge was authorized, under the law, to enter such order\u201d; and, referring to facts similar to those at bar, said: \u2018 \u2018 This bill does not show on its face, affirmatively, why Judge Hopkins\u201d (to whom it was presented) \u201cmade the entry that he did on the transcript of the record or the authority by which Judge Olson\u201d (the trial judge) \u201centered the nunc pro tunc order.\u201d\nThe supplemental certificate of the trial judge in the case at bar does not better the situation. Even if it could be deemed an amendent to his certificate that was authorized, the facts recited therein were until then locked up in his breast and were not duly preserved in a bill of exceptions, or recited by the presiding judge as a reason for presenting the bill of exceptions to him, and did not otherwise appear in the record, and hence would at that time have furnished no basis for a rmne pro tunc order, even if one had been made. The only authority the court had when it signed the certificate, whether on September 3 without explanation, or September 24 with one, was such as had a basis for a legal order to sign the bill nunc pro tunc, and the record furnishes no such basis.\nIn view of the rulings on this subject, the seeming harshness of the situation is one that can be obviated only by proper recitals made by the judge to whom the bill is presented or otherwise preserved in the record, or by recourse to the legislature. But the statute bearing on the subject cannot be stretched to cover a situation like this, even if the explanation could be deemed as setting forth such a \u201cdisability\u201d as is contemplated by section 81 of the Practice Act (J. & A. 8618). (See Rosenwald case, supra, p. 553.) Accordingly the motion to strike the bill of exceptions must be allowed. As none of the assignments of error rest on the common-law record, the judgment must be affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Justice Barnes"
      }
    ],
    "attorneys": [
      "Schuyler & Weinfeld, for appellants.",
      "Jacob Levy and Josiah Burnham, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jerome Koscal, by Wendel Koscal, Appellee, v. Sidney Wolfson and Henry Wolfson, trading as Wolfson & Company, Appellants.\nGen. No. 24,568.\n1. Municipal Court op Chicago, \u00a7 27*\u2014when hill of exceptions will he stricken from record. A bill of exceptions was stricken from the record, where it appeared that the time for its filing expired on July 3 when it was marked as presented to one of the judges of the Municipal Court other than the trial judge and ordered to he filed, and where the signature to its completeness was dated September 3 following, nunc pro tunc July 3, and where subsequently the trial judge appended a statement dated September 24, that when the bill was so presented he was outside the State \u201ctaking a much needed rest\u201d and so \u201cunable\u201d to hold court and sign such instrument, and that by long-distance telephone he directed that the judge to whom his cases were assigned should sign for him.\n2. Municipal Court op Chicago, \u00a7 27 \u2014when signing of hill of exceptions after last day for filing will he unavailing. The signing of a bill of exceptions after July 3, which was the last day for its filing, and on which day it had been marked as presented by a judge other than the trial judge, with the use of the words nunc pro tunc, was unavailing when there was in fact no order to that effect and nothing apparently upon which it could be based.\n3. Appeal and ekbob, \u00a7 843 \u2014when judge \u201cdisabled\u201d from signing Mil of exceptions. Question, whether the absence of the trial judge by reason of \u201ctaking a much needed\u201d rest, and being so \u201cunable\u201d to hold court and sign the bill of exceptions in question, was such a \u201cdisability\u201d as is contemplated by section 81 of the Practice Act (J. & A. j[ 8618), providing for the signing of bills of exceptions, etc., by a judge other than the trial judge, in cases of disability, etc.\nAppeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.\nAffirmed.\nOpinion filed October 10, 1919.\nRehearing denied October 21, 1919.\nSchuyler & Weinfeld, for appellants.\nJacob Levy and Josiah Burnham, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0001-01",
  "first_page_order": 27,
  "last_page_order": 30
}