{
  "id": 3310039,
  "name": "James Donahoe, Appellee, v. City of Chicago, Appellant",
  "name_abbreviation": "Donahoe v. City of Chicago",
  "decision_date": "1928-02-09",
  "docket_number": "Gen. No. 31,890",
  "first_page": "435",
  "last_page": "439",
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      "cite": "247 Ill. App. 435"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T21:19:24.032975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "James Donahoe, Appellee, v. City of Chicago, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Taylor\ndelivered the opinion of the court.\nJames Donahoe, the plaintiff, claiming that he was elected judge of the municipal court on November 3, 1914, but that the salary of the office was not paid to him for the full term, brought suit in assumpsit against the City \u00f3f Chicag\u00f3, and on January 22, 3.927, recovered judgment in the sum of $27,000, This appeal is by the City of Chicago from that judgment.-\nAs showing grounds for reversal, all that counsel for the City has presented to this court is a common-law record, and it is contended on behalf of the plaintiff that the transcript of the record is insufficient to challenge the judgment of the trial judge on the merits of the case. There being no bill of exceptions, we are limited, under the law, to the contents of the common-law record, and in considering that record, it is to be presumed that the evidence was sufficient to justify the judgment, either upon appeal or writ of error. People v. Illinois Merchants\u2019 Trust Co., 320 Ill. 365.\nThe common-law record, as it appears here, contains the praecipe, the appearance of the defendant, the declaration, the plea of the general issue by the defendant, the judgment of the court, and, also, contains a copy of a document entitled, \u2018 \u2018 Stipulation of Facts, \u2019 \u2019 consisting of four typewritten pages, and which purports to be signed by the defendant, City of Chicago, by the corporation counsel, and by the plaintiff, James Donahoe, by his attorneys. There is no order of any kind pertaining to the stipulation of facts.\nOn behalf of the plaintiff, a motion was made to strike and expunge the purported stipulation of facts, occupying pages 21 to 26, inclusive, of the record, and the motion was taken with the case.\nCounsel for the defendant, objecting to the motion, contend that the common-law record shows that it was an agreed case, pursuant to section 104. ch. 110, of Cahill\u2019s Rev. Ill. St. 1925. .\nIn our judgment, the so-called stipulation of facts is not entitled to be considered as a proper part of the common-law record (Wilson v. McDowell, 65 Ill. 522) and could be brought to the attention of a court of review only by being embodied in a bill of exceptions, unless, however, the record in this case comes within the purview of section 104, ch. 110, of the Revised Statutes.\nThe first part of section 104 provides for a certificate of a question of law by the trial judge with the assent of the parties litigant. As, in the instant case, there is no such certificate, that part of the section is not available. The second part of section 104 provides that the parties may agree as to the question or points of law arising therein, and the same may be certified by their counsel and \u201cupon such certificate being made, the same shall be filed in the court * * * and a copy of such certificate, certified by the clerk of said court, with the decision thereon and final decision in the case or proceeding, to the Appellate Court * * * and filed therein; and, upon filing the same, the like proceedings may be had in the Appellate Court * * *, as if a full and complete record had been transcribed and certified to said court.\u201d\nThe preamble of the \u201cStipulation of Facts\u201d is as follows:\n\u2018 \u2018 Come now the plaintiff and defendant in the above entitled cause by their respective attorneys of record herein and stipulate and agree that in the trial of the above entitled cause the following facts in so far as competent, relevant and material may be taken as proved and established without the introduction of any other testimony or evidence relating thereto, meaning and intending hereby to stipulate that the following are facts in connection with the transaction and not that proof of such facts is necessarily admissible in evidence.\u201d\n\u2022 Following the preamble are twelve paragraphs which set forth a series of facts concerning the general election of November 3, 1914, at which ten judges were to be elected for the municipal court of Chicago.\nThat is not an agreement \u201cas to the question or points of law\u201d arising in the case; and when signed' by counsel and incorporated in the record is not a certificate by counsel \u201cas to the question or points of law arising therein.\u201d In City of Waukegan v. DeWolf, 258 Ill. 374, 376, the court said, this section \u201cauthorizes the parties in any suit or proceeding to make an agreed case containing the points of law at issue between them, and the agreed case, with the decision thereon, may be certified to the Appellate Court or Supreme Court without certifying any fuller record in the case, and errors may be assigned and the case shall proceed in the same manner as if a full record had been certified. The object of the section is to enable parties, by agreement, to submit the questions in dispute between them for review without the formality of a bill of exceptions.\u201d\nEven if we should assume that the document entitled \u201cStipulation of Facts\u201d was an agreement as to certain facts \u2014 although the preamble leaves that somewhat in doubt \u2014 still it fails utterly as an agreement \u201cas to questions or points of law,\u201d which alone the statute makes provision for.\nThen, too, the final order of the court, of January 22, 1927, contains the following: \u201cAnd the court now here after hearing all the evidence adduced, the arguments of counsel, and being fully advised\u201d finds the issues for the plaintiff. To what evidence did the court refer? Without a bill of exceptions, we do not know.\nSome objections are made as to the judgment being larger than the act damnum in the original declaration, and as to interest, but they are not well taken.\nThere being no bill of exceptions, and the record not coming within the requirements of section 104, and the common-law record showing no substantial error, the motion to strike the stipulation of facts from the record is allowed and the appeal dismissed.\nAppeal dismissed.\nHoldom and Wilson, JJ., concur.",
        "type": "majority",
        "author": "Mr. Presiding Justice Taylor"
      }
    ],
    "attorneys": [
      "Francis X. Busch and Samuel A. Ettelson, Corporation Counsel, for appellant; Frank J. Corr and Edward M. Quinn, Assistant Corporation Counsel, of counsel.",
      "Hopkins, Starr & Hopkins, for appellee; Merritt Starr and O. John Rogge, of counsel."
    ],
    "corrections": "",
    "head_matter": "James Donahoe, Appellee, v. City of Chicago, Appellant.\nGen. No. 31,890.\nHeard in the third division of this court for the first district at the March term, 1927.\nOpinion filed February 9, 1928.\nFrancis X. Busch and Samuel A. Ettelson, Corporation Counsel, for appellant; Frank J. Corr and Edward M. Quinn, Assistant Corporation Counsel, of counsel.\nHopkins, Starr & Hopkins, for appellee; Merritt Starr and O. John Rogge, of counsel."
  },
  "file_name": "0435-01",
  "first_page_order": 465,
  "last_page_order": 469
}