Jackson v. Sackett

Citations

• 146 Ill. 646
• 35 N.E. 234

Syllabus

<p>1. Chancery — waiver of answer to supplemental bill. Where the complainants in a bill voluntarily go into a hearing without asking for a rule on the defendants to answer a supplemental bill, or seeking to have them defaulted for want of an answer, the complainants will be regarded as having waived the formality of an answer, and the case will be treated the same as though an answer' denying the allegations of the bill had been filed, especially when such supplemental bill contains no allegations of fact not in the original bill and a bill of revivor, which are answered.</p> <p>2. It has often been held by this court that parties going to trial willingly, without formal issues made up, will be considered as having waived the required formality to make up an issue.</p> <p>3. Same—preserving the evidence. In proceedings in chancery it is incumbent on the party seeking to sustain a decree in his favor, to preserve the evidence upon which it is based, in the record, in some proper form; and when this is not done, no presumption will be entertained that evidence sufficient to sustain the decree, not appearing in the record, was heard. When the bill is dismissed for want of equity the evidence need not be preserved.</p> <p>4. Same—modes of preserving the evidence. There are several modes in which the evidence may be preserved in the record. Thus, depositions on file become ipso facto parts of the record; and the same is true of evidence embodied in the report of the master. These were regarded as parts of the record before the statute allowing oral testimony in equity, and that rule is not changed by the statute.</p> <p>5. Where evidence is taken orally in open court, it must be preserved by a certificate of evidence; but when the decree recites the facts found by the court from the evidence, it will be presumed, in the absence of anything in the record showing the contrary, that the facts thus found were proved by competent evidence. But although the decree may recite