#### Cleveland, Cincinnati, Chicago and St. Louis Ry. Co. v. T. J. McGrath.

Opinion filed February 21, 1902.

Appeals and errors—record must show that validity of statute was questioned in trial'court. A case cannot be brought to the Supreme Court on appeal or by writ of error upon the ground that the validity of a statute is involved, unless the record shows that the question was in some way presented to the trial court for decision.

Writ of Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.

*105John T. Dye, and Frank Y. Hamilton, for plaintiff in error.

Livingston & Bach, for defendant in error.

Per Curiam:

This is a writ of error to the circuit court of'McLean county, sued out by plaintiff in error to reverse a judgment of that court, including the sum of $30 for attorney fees. The action was begun before a justice of the peace for killing cattle claimed to have gotten upon the track of the defendant by reason of its failure to erect and maintain suitable fences, as required by the statute. From a judgment in favor of the plaintiff before the justice of the peace the defendant appealed to the circuit court, where, upon a trial de novo, judgment was again rendered for the plaintiff for $50 damages and $30 attorney’s fees. It was stipulated by the parties that $30 would be a reasonable fee for the trial of the case in the circuit court and before the justice of the peace, but the defendant objected generally to the allowance of an attorney fee in the case.

The only error insisted upon here is, “the statute under which the court allowed attorney’s fees in said cause is unconstitutional, illegal, invalid and void.” We have carefully examined the record, and are unable to find wherein the constitutionality or validity of that statute is in any way raised. No instruction was submitted to the court in any way raising that question. No objection was made to evidence, and the stipulation as to the reasonableness of the fee preserves in no way a constitutional question. A case cannot be brought by appeal or writ of error to the Supreme Court as involving the validity of a statute, unless the record shows that that question was in some way presented to the trial court for its decision. Opaque Cloth Shade Co. v. Veight, 161 Ill. 337.

The case is improperly in this court, and the writ of error will accordingly be dismissed.

Writ dismissed.