Grand Lodge, Independent Order of Free Sons of Israel v. Ohnstein (110 Ill. App. 312, 1903)

Mr. Presiding Justice Adams

delivered the opinion of the court.

The original transcript of record in this case was filed October 8, 1902. January 22, 1903, the appellant, by leave of the court, filed an additional transcript of the record. February 9, 1903, appellee, by like leave, filed an additional transcript, and February 13, 1903, moved to strike from and disregard certain portions of the transcript filed by appellant January 22, 1903. This motion was reserved to the hearing. The additional transcript filed by appellant purports to be an amendment of the bill of exceptions contained in the original transcript filed here October 8, 1902. It appears from the bill of exceptions contained in the original transcript, that a number of documents offered by appellee were admitted in evidence by the court, but are not contained in the bill of exceptions. After the recital in the original bill of exceptions of the admission of a document such words as these appear: “ Said document was marked Exhibit A. It is in words and figures as follows, to wit:” or, “The papers are in words and figures as follows, to wit:” or other like reference; but the documents are not copied into the bill of exceptions. Appellant’s additional transcript purports, by amendment, to supply these omissions in the original bill of exceptions. The case was tried at the Maxr term of the court, 1901, and the order allowing the amendments was made January 15, 1903. The order is as follows :

“ This cause coming on again this day to be heard, upon the motion of the defendant’s attorney to amend the bill of exceptions herein, and after notice duly given to the plaintiff, and all the parties being in court, and after a careful examination by the Honorable It. W, Clifford, judge thereof, of the stenographer’s transcript of the evidence heretofore filed herein and made a part of the records of this case by the bill of exceptions heretofore filed herein, and on the inspection of various papers and records now here produced before the court and identified by the court as the various papers and exhibits introduced in evidence in said cause and referred to in the bill of exceptions herein heretofore signed and sealed; to wit, on the 18th day of September, Á. B„ 1902, and the affidavit of the stenographer who took notes of the evidence offered, introduced,and rejected or admitted, who identified certain documents and'records as being the original documents and records; and the court being fully advised in the premises doth find that said records, and especially the said bill of exceptions and the identification marks and affidavit of said stenographer, A. M. Griffen, produced before the court here by said defendant’s attorneys, show and indicate and are sufficient memoranda and notes from which the court may find, and the court doth find, that said exhibits referred to in the motion of the defendant, and in said affidavit of said stenographer, and copies of which are set out in the bill of exceptions hereinafter specified, are the original exhibits offered at the hearing of said cause and referred to in said bill of exceptions, and that the same were omitted from and do not appear in said bill of exceptions heretofore filed herein.

And the defendant having presented such amendment to said bill of exceptions here now to this court, and the same having been settled, signed and sealed by this court,

It is ordered that the defendant have leave to file the same mono pro tuno as of the 18th day of September, A. D. 1902, as an amendment of said bill of exceptions heretofore filed herein, and that said bill of exceptions be, and the same is hereby so amended.”

Appellee’s attorney objected to the amendments shown by appellant’s supplemental bill of exceptions, but the objections were overruled by the court, and the court allowed to appellee a bill of exceptions, the certificate to which is as follows :

“ And the'court certifies that he thereupon allowed said supplemental affidavit of said Alonzo M. Griffen to be read and filed, and considered the same upon the hearing of said motion.

And the court certifies that the foregoing were all the affidavits and evidence, oral or documentary, offered or introduced by the parties, or considered by the court upon the hearing of said motion of said defendant.

The court further certifies that at the time of the hearing of the above entitled cause before him, upon the 28th and 29fch days of May, 1901, the branch of the court presided oxmr by the Hon. Richard W. Clifford did not have any official stenographer acting in the said court, nor had any official stenographer been appointed in his branch of said court, under or in pursuance of the terms of an act entitled £ An act to authorize the judges of the Circuit Courts to appoint shorthand reporters for the taking and. preservation of evidence and to provide for their cornpensation,’ approved May 31, 1887.

The court further certifies that counsel for plaintiff then and there objected to the granting of said motion of said defendant, and to the settling and signing of an amended and supplemental bill of exceptions in said cause by the court, as to any or either of exhibits omitted from the original bill of exceptions filed in said cause, on the grounds that said court had no jurisdiction or power to so settle and sign an amended bill of exceptions therein; that no showing had been made by the defendant warranting the settling and signing of an amended and supplemental bill of exceptions; that there was no record, memorandum or minute, official; or gwísá-official, of the court, or any officer thereof, upon which such an amendment as to an^v or either of such omitted exhibits might be predicated, and" that such amendment could not be predicated upon the recollection of the judge of said court having tried said cause, and now hearing said motion, nor upon his identification of any of the documents offered upon this hearing by the defendant; that there was no competent proof before the court showing that the documents, and each and every of them, offered upon this hearing, were the original documents offered upon the trial of said cause, and referred to in the original bill of exceptions filed herein; that the affidavit of Alonzo M. (xriffen, offered by the defendant upon said motion, was improper and incompetent, and could not form the basis of such amendment as to any, either or all of such omitted exhibits.

But the court overruled each and every of said objections.

To which action of the court in overruling said objections, and each of them, plaintiff, by her counsel, then and there duly excepted.”'

Appellee’s' motion “to strike out and disregard,” etc., includes all the documents and papers omitted from the original bill of exceptions and which are purported to be supplied by, appellant’s supplemental bill of exceptions. These documents are as follows: Exhibit A, being the original declaration of endowment of Lippman Lichtenstein, deceased, deposited with Moses Lodge No. 18, I. O. F. S. of L; Exhibit 2, being the endowment laws of appellant; Exhibit 3, purporting to be the last will of Lippman Lichtenstein; certain files of the Circuit Court in the case of Hannah Ohnstein et al. v. appellant; placita and judgment in the Circuit Court in suit Hannah Ohnstein and Julius Ohnstein v. appellant, showing the striking out of the name of Hannah Ohnstein ás co-plaintiff, and judgment in favor of Julius Ohnstein and against appellant, for the sum of $415 and costs; the judgment of this court, affirming the last mentioned judgment in favor of Julius Ohnstein.

The affidavit of Griffen, in support of the amendments,' was, in substance, to the effect that he took stenographic notes of the evidence offered on the trial, which notes showed that certain documents, copies of which were attached to his affidavit, were introduced in evidence on the trial; that he identified Exhibit A (above mentioned) by his having marked it “ Exhibit A. A. M. G.; ” that he. identified Exhibit 2 (above mentioned) by his having marked it “ Pltff’s Exhibit 2, May 28, ’01;” that he identified Exhibit 3 (above mentioned) by having marked it, “ Pltff’s Exhibit 3, May 28, ’01, A. m". G.; ” that he identified the files of the Circuit Court (above mentioned) by inspection thereof and by his stenographic notes; that his stenographic notes show the admission in evidence of the placita and judgment of the Circuit Court in Hannah Ohnstein et al. against appellant, and the affirmance of the same by this court. Affiant also swears that he marked the documents by direction of the court,, but does not say, nor does the court certify, that the court directed what marks should be put on the documents. The court does not certify to any direction to the reporter. Appellee, in opposing the motion to amend the bill of exceptions, read an affidavit of Griffen, which is contained in appellee’s bill of exceptions, and is as follows: u

“ Alonzo M. Griffen, being first duly sworn, on oath, deposes and says that he is the same person who signed ancl swore to an affidavit in the above entitled cause on the 14th day of January, A. D. 1903, before E. A. Eulass, notary-public; that since signing and swearing to the affidavit before mentioned, he has carefully re-read and examined the same, at the request of counsel for the plaintiff herein; that he has also, again examined his stenographic notes taken upon the trial of the above entitled cause before the Honorable E. W. Clifford; that he has also examined the bill of exceptiohs in the above entitled cause, signed by the Honorable R. W. Clifford, judge, on the 18th day of Septernber, 1902, and now constituting a part of; the record in the Appellate Court of Illinois for the First District, in the cause of Grand Lodge of the Hnited States of the Independent Order of Free Sons of Israel against Hannah Ohnstein, and compared his said notes with said bill of exeeptions, so far as the exhibits are concerned; that in so far as the exhibits offered, introduced and admitted in evidence upon the trial of said cause are concerned, this affiant says, after such renewed examination of his notes and such comparison thereof with said bill of exceptions, that said bill of exceptions contains a full, complete and exact statement of everything relating to the contents, substance or identity of said exhibits, as shown by affiant’s said stenographic notes, and that affiant’s said stenographic notes do not show any other or additional matter or thing relating to the contents, substance or identity of any of the said exhibits, than what is shown in the bill of exceptions above mentioned; that in so far as affiant’s former affidavit may be susceptible to the construction that affiant’s said stenographic notes show any matter or thing relating to the substance, contents or identity of any of said exhibits other than that already shown by said bill of exceptions, affiant says that said affidavit is incorrect, and that the same and his statements therein contained, should be treated as modified accordingly.

Affiant further says that his said stenographic notes of said trial do not contain the substance or contents of anv of the exhibits introduced or admitted in evidence upon the trial of said cause, and in so far as affiant’s said former affidavit may be construed to the contrary, affiant says that the same is incorrect, and wishes the same, and such statement therein contained, if any, to be treated as modified accordingly.

Affiant further says that he did not prepare the transcript of the testimony taken in the above entitled cause, which was used by said court as a bill of exceptions therein; that he has never made any transcript of his stenographic notes taken upon the trial of said cause; that affiant, in the taking of said testimony before said Judge Clifford, was not acting as the official stenographer of said Judge Clifford, but was employed by the plaintiff’s attorneys in said cause, and was paid by them as their private stenographer; that affiant knows that at the time that said cause was tried by said Judge Clifford, said Judge Clifford did not have, nor had he appointed any official stenographer, under the statutes of this state, to act as such in his court.”

■The court further certifies, in appellee’s bill of exceptions, in reference to the order of January 15, 1903, allowing the amendments, as follows :

“And the court certifies that in entering said order allowing said amendment, and in signing said amendment and supplemental bill of exceptions, as to each and every of the exhibits therein contained, the court considered such original bill of exceptions of September 18, 1902, the affidavits of Alonzo M. Griffen, hereinabove mentioned, the testimony aforesaid of the deputy clerk of the Appellate Court, and the other witness above mentioned, the documents offered as above recited, and the identification marks shown by said Griffen’s.affidavits, and contained on the documents purporting to be the originals of Exhibits “A,” “ B ” and “ C ” attached to said Griffen’s affidavit, and predicated such amendment solely upon the same, and upon the court’s recollection and identification of each and all of the documents so offered, as being the original exhibits offered upon the trial of said cause, and referred to in said bill of exceptions of September 18, 1902.”

This certificate conclusively shows that the court did not predicate the amendments on any memoranda of the court; also, that they were not predicated on any official or quasi-official memorandum, because Griffen, as his affidavit and the certificate of the court shows, was not the official reporter of the court. The certificate is, that the court considered the original bill of exceptions, which does not contain the documents, the affidavits of Griffen, the documents themselves, and Griffen’s unofficial marks sworn to by him, and predicated such amendment solely upon the same and the court’s recollection and identification of the documents.

Briefly, the sole basis for the amendments consisted of Griffen’s affidavit and the court’s recollection of what occurred more than eighteen months before the amendments were allowed.

In Hubbard v. The People, 197 Ill. 15, Hubbard was convicted at the May term, 1900, of the court. The trial court, at the November term of the court, 1901, amended the record as of the May term, 1901, so as to show that the jury was impaneled and sworn; that the defendant was present when the verdict was returned and the sentence pronounced; and that the jury was kept in charge of a sworn officer. The affidavits of the stenographic reporter of the evidence on the trial and of the clerk of the court were the sole basis of the amendment. The court say :

“ The record in a criminal case may be amended after the term at which it is made has elapsed, by an order of court entered nunepro fomc,when by reason of a clerical misprision it does not speak the truth. (Kennedy v. People, 44 Ill. 283; Phillips v. People, 88 Id. 160; Gore v. People, 162 Id. 259; Knefel v. People, 187 Id. 212.) The amendment must, however, be based upon some official or quasi-ofUoial note or memorandum or memorial paper remaining in the files of the case or upon the records of the court, and a fact proposed to be incorporated into a record to supply an omission can not rest in the recollection of the judge or other person, or be based upon ex parte affidavits or testimony after the event has transpired. (Dougherty v. People, 118 Ill. 160; Tynan v. Weinhard, 153 Id. 598; Village of North Cnillicothe v. Burr, 178 Id. 218; Chicago, Burlington and Quincy Railroad Co. v. Wingler, 165 Id. 634; Dreyer v. People, 188 Id. 40.) 6 The memorial paper or minute by which a record may be amended must be made and preserved as a part of the record, pursuant to law. A private memorandum of a witness is not sufficient.’ (Dougherty v. People, supra.) ‘It must be shown by the production of some note or memorandum from the records or ^««¿-records of the court or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers on file in the, cause. It can not be determined from the memory of witnesses, or by the recollection of the judge himself.’ Tynan v. Weinhard, supra.”

In respect to the stenographic notes of the reporter and the affidavit of the clerk, the court says :

“ The stenographic notes of the shorthand reporter were not, therefore, such a memorial paper, note or memorandum as the law contemplates shall be used as a basis from which to make an order amending a record nunc pro ttonc. The ex parte affidavits of the reporter, accompanied by excerpts from his stenographic notes and of the clerk of the Circuit Court, were not sufficient upon which to base