ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
The motion to dismiss or affirm is without merit. The signing of the bill of exceptions after the expiration of the term at which the judgment was rendered, was lawful if done by consent of parties given during that term. Hunnicutt v. Peyton, 102 U.S. 333; Davis v. Patrick, 122 U.S. 138; Michigan Ins. Bank v. Eldred, 143 U.S. 293.
The fact that the bill of exceptions was not handed to counsel for defendant on or before November 15, 1890, does not appear of record, and if it did, it would be rendered immaterial by the action of the judge below in settling the bill.
If the bill was not delivered to counsel within the time fixed by the agreement, objection to the failure so to deliver it should have been urged when the bill was settled. And if an objection then taken was overruled, the question of the correctness of such action should have been then reserved. The fact is, that the only reservation made in the settlement of the bill is thus stated in the record: "Counsel for plaintiff move that the judge do not sign the same, because the defendant has not filed this bill of exceptions within the time prescribed . . . at the time the appeal was prayed." This, of course, was not sound, in view of the agreement whereby the time which had been at first fixed was extended. The only question reserved in this connection is accordingly, also, without merit. As to the contention that the appeal was docketed too late, the defendant in error is precluded from relying thereon by reason of his motion here for a new bond, long after the entry of the case on the docket of this court, which was made at the return term.
Thether the concluding words in the bill of exceptions, "which was all the testimony offered on the trial of the cause," would be treated as meaning all the evidence, if unexplained by the context of the bill, need not be considered, as all the recitals in the bill, from the caption to the end thereof, taken together, we think, conclusively show that the
words, "all the testimony," were used as synonymous with "all the evidence." This conclusion is strengthened by the fact that the bill was settled contradictorily, and no reservation as to its incompleteness was made.
Coming then to consider the record, we find that the assignments of error here are of a threefold nature: (a) those which relate to the conclusions of law reached by the court upon the merits of the controversy; (b) those which complain of perversion and misuse by counsel of evidence admitted, which it is alleged were so serious that they must have affected the minds of the jury, to such an extent as to render the verdict and judgment necessarily reversible; and (c) those which rest upon the alleged rejection of legal and admission of illegal evidence.
We will first approach the investigation of the matters mentioned under the second heading, since if the complaint of perversion and misuse of evidence is justified, it is not necessary to consider whether the rulings on the admissibility of testimony or the final conclusions of law, upon the merits, were correct.
The complaint of the conduct of counsel in argument is substantially predicated upon the following analysis of the facts, which we find borne out by the record. In the opening statement of counsel for plaintiff, portions of the divorce proceedings were read to the jury, counsel saying, among other things: "Here was an allegation that she has enticed him from his home, and the divorce was granted upon that ground among others; that is, the decree finds that the facts in the complaint were proved and that the divorce was granted upon that ground." When the record of the divorce proceedings was offered by the plaintiff objection was made thereto, and thereupon the court admitted it to prove the fact of the divorce alone, expressly limiting it to such purpose, and forbidding the reading or stating to the jury any of the averments found in the petition which in any way reflected upon the defendant. When the statute of Indiana was admitted, over objection, its introduction was allowed solely for the purpose of showing the law under which the divorce was granted.
Having thus obtained the admission of the record and the statute for qualified and restricted purposes, plaintiff's counsel, in their closing argument to the jury, used these instruments of evidence for the general purposes of their case, repeated to the jury some of the averments in the petition which assailed the plaintiff's character, and put those allegations in juxtaposition with the statute of Indiana on the subject of divorce and the testimony of certain witnesses, in order to produce the impression upon the minds of the jury that the decree of divorce had been granted on the ground of adultery between the defendant and Waldron. Indeed, the fact is that the counsel after referring the jury to the evidence which was not in the record stated to them, in effect, that it established the fact, or authorized the fair inference that the decree of divorce had been rendered on the ground of adultery with Mrs. Alexander, and therefore conclusively established the right of the plaintiff to recover in the present case. It is unnecessary to say that all this is ground for reversal, unless its legal effect be in some way overcome. It is elementary that the admission of illegal evidence, over objection, necessitates reversal, and it is equally well established that the assertion by counsel, in argument, of facts, no evidence whereof is properly before the jury, in such a way as to seriously prejudice the opposing party, is, when duly excepted to, also ground therefor. Farman v. Lanman, 73 Indiana, 568; Brow v. State, 103 Indiana, 133; Bullock v. ...