West Chicago Park Commissioners v. Kincade
West Chicago Park Commissioners v. James Kincade
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Summary
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Opinion of the Court
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Mr. Presiding Justice Gary delivered the opinion of the Court.
It appears from the testimony of the appellee as a witness, that he had a contract for work on Ashland Boulevard, to the amount of $18,000, and that he cut down curb stones to permit laying sidewalks into the curbing, which work was not part of his contract. He did it under orders of the engineer of the appellant, and with the knowledge of some of the Park Commissioners that the engineer had given such orders.
This is not enough to charge the appellant.
» It is a municipal corporation—a trustee for the public—. and its funds are not to be used for the payment of unauthorized claims, which, though honest in .the particular instance, by such payment establish precedents which open the door to fraud. Hague v. City of Philadelphia, 48 Pa. St. 527; McDonald v. Mayor N. Y., 68 N. Y. 23 ; Dillon Mun. Corp., Sec. 445 et seq.
The judgment in his favor is reversed, and final judgment for the appellant entered here; the case having been tried below by the court. Union Nat’l Bank of Chicago v. Manistee Lumber Co., 43 Ill. App. 525 ; Morris v. Wibaux, 47 Ill. App. 630 .
On Rehearing
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Gary, P. J., on petition for rehearing.
This petition, after reciting the foregoing opinion, urges-that the appellee’s original brief, taking the position “ that when a case is submitted to the court for trial, it is essentially necessary that the party appealing from the finding should have submitted to the trial court his propositions of law to be held by it,” was inadvertently overlooked. It is then added: “For the reasons above stated we did not go into the merits of the case in our former arguments, and said nothing about the evidence in the case, and the manifestly unfair abstract of the record made by the appellant.”
He can not now go into the matter which was not then presented. Ætna IronWorks v. Owen, 62 Ill. App. 603 .
And on the matter stated in the first extract from the petition, the brief was wrong. Smith v. Doud, 29 Ill. App. 290 .
In two cases (to which I can not immediately refer) in" this court, the same views so clearly expressed by Judge Wall, have been held correct. And see Bridge Co. v. Comm. Highways, 101 Ill. 518 , and Bradish v. Young, 130 Ill. 386 .
In cases on the law side of the court, and in the first instance appealable to an Appellate Court, the Supreme Court can pass only upon questions of law. In order that the Supreme Court may see what was held to be the law of the case in the trial court, instructions—if the case was tried by a jury—propositions of law, if the case was tried by the court—must show the law adopted or rejected in the trial court. But if the question is otherwise saved in the trial court by appropriate motions and exceptions, this court, without either instructions or propositions, may inquire whether the facts warrant a recovery.
The judgment here was entered April 13, 1896. We are •now, May 14, 1896, asked to grant a certificate of importance, and an appeal to the Supreme Court.
Our power to grant either, is limited to twenty days after judgment, and is not extended by the time consumed upon a petition for a rehearing. McLachlan v. McLachlan, 126 Ill. 427 ; Sholty v. McIntyre, 136 Ill. 33 .
The petition is denied.
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