Ditch v. Sennott

Citations

• 116 Ill. 288

Syllabus

<p>1. Assignment op ebbobs—upon the record. The requirement that upon appeal or error in this court there must be an assignment of errors “written upon or attached to the record,” is not a mere matter of form, to be considered waived if n'ot objected to, but one of substance. The assignment of errors performs the same office in this court that a declaration does in a court of original jurisdiction, and is equally essential in the forming of an issue upon which the court can properly give judgment.</p> <p>‘2. In this case, which was an appeal, at the first term after the appeal was taken the appellee moved to dismiss the appeal upon the ground of a supposed defect in the appeal bond. That motion was overruled, and, no further motion being made, the cause was submitted for the consideration of the court upon the briefs and arguments of the respective counsel. On the case coming up for consideration, after the expiration of the term, it was found that the appellee, in his brief, had objected that there was no assignment of errors upon the record. In this way the omission was, for the first time, called to the attention of the court. On examination, the record disclosed the fact, .though the appellant, in his abstract, did set forth an assignment of errors. But the court dismissed the appeal because there was no assignment of errors “ written upon or attached to the record. ”</p> <p>3. It was the duty of the counsel for appellees, when he discovered that errors had not been assigned upon the record, to have moved the court to dismiss the appeal for the want thereof, or taken a rule upon appellants to assign error upon the record. It was likewise the duty of appellants’ counsel to have made a proper assignment of error in the first instance, and having omitted to do so, when his attention was called to it, he should have applied to the court at the earliest opportunity for leave to assign errors instanter. But at the stage of the cause when the matter came to the attenti