[Ed. Note.-For other cases, see Time, Cent. Dig. § 47; Dec. Dig. 10(8).] 8. PLEADING

34(6)—OBJECTIONS-WAIVER. Where a declaration in three counts proper

Decree affirmed.

were made negativing assumption of risk, held, in the absence of demurrer, that defendant, after verdict, cannot raise such objection to the declaration.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 72, 73; Dec. Dig. 34(6).]

trict, on Appeal from Circuit Court, Cook Appeal from Appellate Court, First DisCounty; John A. Dowdall, Judge.

Action by Charles B. Richter against the Chicago & Erie Railroad Company. From a judgment for the plaintiff, affirmed by the Appellate Court (191 Ill. App. 538), defendant appeals, having been granted a certificate of importance. Affirmed.

38.1

Where the time limited for the presentation of a bill of exceptions has not expired, the court in session at any succeeding term may make an order extending the time in which to file such exceptions.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 60; Dec. Dig. 40(4).] 3. EXCEPTIONS, BILL OF 40(4) SETTLEMENT-TIME FOR PRESENTATION.

After the time for presenting a bill of exceptions for signature of the judge has expired, the court has no authority to extend such time, by order entered in vacation or at a term subsequent to that in which the case was disposed of. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 60; Dec. Dig. 40(4). 4. TIME 10(8)-HOLIDAYS.

Rev. St. c. 131, § 1, par. 11, providing that, in computing the time in which any statutory requirement shall be performed, the first day shall be excluded and the last shall be included, unless it falls on Sunday, when it also shall be excluded, does not exclude the last day falling on Lincoln's Birthday, or any other holiday, unless such day also falls on a Sunday.

[Ed. Note. For other cases, see Time, Cent. Dig. 47; Dec. Dig. 10(8).] 5. HOLIDAYS 5-JUDICIAL PROCEEDINGS.

Lincoln's Birthday is not a holiday, so far as judicial functions are concerned, though observed as a holiday for certain purposes. [Ed. Note.-For other cases, see Holidays, Cent. Dig. §§ 2-5; Dec. Dig. 5. For other definitions, see Words and Phrases, First and Second Series, Holiday.] 6. HOLIDAYS

PURPOSES.

1-STATUTORY HOLIDAYS

A day made a holiday by statute for the purposes named therein is not a legal holiday for any other purposes.

[Ed. Note. For other cases, see Holidays, Dec. Dig. 1.

For other definitions, see Words and Phrases, First and Second Series, Holiday.]

7. TIME 10(8) BILL OF EXCEPTIONS TIME FOR PRESENTATION-WHEN LAST DAY FALLS ON HOLIDAY.

Where the last day of the time for presenting a bill of exceptions fell on Lincoln's Birthday, and the courts were closed on that day, held, that a bill of exceptions, not presented to.

DUNCAN, J. Appellee, a brakeman in the service of the Chicago & Erie Railroad Company, appellant, brought this action in case in the circuit court of Cook county to recover damages against appellant for the loss of his foot while employed by the company in uncoupling cars on one of its moving trains. He recovered a judgment for $1,950 after motions for new trial and in arrest of judgment had been overruled by the court. Appellant prosecuted an appeal to the Appellate Court. The Appellate Court affirmed the judgment and granted a certificate of importance, and appellant has perfected its appeal to this court.

In the trial court appellant was given 60 days from December 14, 1912, in which to file a bill of exceptions. The last day allowed for filing the bill of exceptions expired February 12, 1913. That day was Lincoln's Birthday, and it was not Sunday. No bill of exceptions was filed or presented to the trial judge on or before that date, and no order was made by the court on or before that date extending the time for filing the bill of exceptions. On February 13, 1913, appellant presented the bill of exceptions to the trial judge, and an order was made by

extending the time for filing the bill of exceptions to March 1, 1913, and on February 28, 1913, the bill of exceptions was filed. On motion of appellee the Appellate Court struck the bill of exceptions from the record. The cause was then heard by that court on the errors assigned on the common-law record. The only question presented to the Appellate Court on the common-law record for consideration was whether or not the trial court erred in overruling the motion in arrest of judgment.

the court, over the objections of appellee,

[1-3] The first error assigned by appellant

in this court is that the Appellate Court erred in striking the bill of exceptions from the record. The rule in this state is that a bill of exceptions must be presented to the trial judge for signature during the term at which the cause is disposed of, or within such further time as shall be limited by the court by an order entered during that term. If the court shall be in session at any succeeding term before the expiration of the time granted, the court may, prior to the expiration of the time granted, and during such succeeding term, make another order extending the time within which the bill of exceptions may be filed; but if the term at which the cause was disposed of is adjourned, and thereafter the period first fixed for tiling the bill of exceptions expires without an order providing for an extension of time, the coat, subsequent to the expiration of that period, is without jurisdiction to make an order extending the time within which to present the bill of exceptions. Pieser v. Minkota Milling Co., 222 Ill. 139, 78 N. E. 20.

[4, 5] It is apparent that the court had no power to extend the time to file the appellant's bill of exceptions, unless the contention of the appellant that the time was extended by law to the 13th day of February, 1913, by reason of the fact that the 12th day of February was a legal holiday, can be sustained. Paragraph 11 of section 1, chapter 131, of the Revised Statutes of Illinois of 1874, provides that, in counting the time within which any act provided by law is to be done, the first day shall be excluded and the last day shall be included, unless the last day is Sunday, and then it also shall be excluded. That section, however, only applies when the last day of the time limited falls on a Sunday. It has no application to a case where the last day of the time limited falls on a holiday unless the holiday falls on Sunday.

[6, 7] Moreover, Lincoln's Birthday is not a holiday in this state so far as the performance of judicial functions is concerned. It is made a legal holiday by statute in this state for certain purposes in regard to negotiable instruments. The rule is that, if a day be made a holiday for purposes stated in the statute creating it, it is not a legal holiday for any purpose not named in the statute. 21 Cyc. 440. So far as the performance of legal functions is concerned, Lincoln's Birthday, not falling on a Sunday, is the same as any other day, and should be counted as a part of the time in which bills of exception are allowed to be filed, although the last day may be on Lincoln's Birthday. This question was settled by this court in Trustees of Schools v. Griffith, 263 Ill. 550, 105 N. E. 760, Ann. Cas. 1914D, 1136. In that case the court fixed the time in which a bill of exceptions should be filed. The time expired on Labor Day. The bill was not filed on or before that day, and the same

contention was made in that case as appellant is making in this case-i. e., that Labor Day should be excluded from the count. The ruling of the court was announced orally by Justice Cartwright, and the holding in that case was the same as here announced, and we see no reason for departing from that decision. The fact that the courts of Cook county were closed on Lincoln's Birthday can make no difference in this case. There is no reason shown in this record why the same could not have been presented to the trial judge whether the courts were in session or not, and a presentation to him in vacation on February 12th, the last day given in which to file the bill, would have been in time, and the presentation sufficient to entitle appellant to file it when the clerk's office should open. As a matter of fact it was not filed for more than 25 days after the time had expired.

[8] The bill of exceptions having been properly stricken from the record by the Appellate Court, the only remaining question presented by the record for our consideration is whether or not the Appellate Court erred in sustaining the trial court in overruling the motion in arrest of judgment. The declaration consists of three counts. The first count charges, in substance, that the company negligently kept and maintained a Janner coupling device on one of its freight cars and negligently permitted the same to be in a bad state of repair, so that the same could not be operated with safety, and that by reason thereof appellee was injured. second count charged that appellee was in jured by reason of the negligent failure of appellant to keep its track and guard rail where he was injured in a reasonably safe condition by blocking or filling the space between the same so that his foot could not be caught, etc. The third count charged appellant with injuring appellee by reason of its negligent use of the said defective coupler and the failure of appellant to provide a safe track, as set forth in the previous counts. The three counts of the declaration appear to be all good counts, with this one exception: Every one of the counts fails to aver that appellee did not know of the defects and danger complained of and had not equal means of knowledge thereof with appellant, or, in other words, appellee failed to negative the assumed risk in every count. Assuming that the doctrine of assumed risk was applicable to every count of the declaration, appellant's contention cannot be sustained. No demurrer was filed to the declaration and the declaration must be held good after verdict. Ide v. Fratcher, 194 Ill. 552, 62 N. E. 814; Linquist v. Hodges, 248 Ill. 491, 94 N. E. 94. As the other errors assigned on this record cannot be considered for want of a bill of exceptions and for the reasons aforesaid, the judgments of the Appellate and circuit courts are affirmed.

Judgment affirmed.

Аст.

(273 Ill. 617) FITT v. CENTRAL ILLINOIS PUBLIC SERVICE CO. (No. 10747.) (Supreme Court of Illinois. June 22, 1916.) MASTER AND SERVANT 417(1)-REVIEWJURISDICTION-WORKMEN'S COMPENSATION Under Workmen's Compensation Act, § 19 (Hurd's Rev. St. 1915-16, c. 48, § 144), providing for entry of judgment by the circuit court upon the finding of the Industrial Board, on application by plaintiff to the circuit court for judgment on an award by the Industrial Commission, made after the circuit court was without jurisdiction to inquire into the legality of the action of the Industrial Board, and was only authorized to enter judgment on the award made.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 417(1).]

Error to Circuit Court, Coles County; Walter Brewer, Judge.

Proceeding by W. R. Fitt for judgment on an award by the Industrial Board, in which the Central Illinois Public Service Company filed objections. From the judgment, defendant brings error. Reversed and remanded, with directions.

filed objections before the Industrial Board, based on the proposition that under the provisions of the Workmen's Compensation Act, a settlement having been voluntarily made by the parties, the Industrial Board was without jurisdiction to hear the matter. This objection was overruled and an order entered allowing as compensation for said injury $273.75, less $32.50 already paid, or $241.25. A certified copy of the decision of the Industrial Board was filed in the office of the clerk of the circuit court of Coles county January 30, 1915. Counsel for plaintiff in error filed objections, which were overruled, questioning the jurisdiction of the Industrial Board, the same as they had questioned its jurisdiction before that body. Judgment was entered in the circuit court for said sum of $241.25.

error.

CARTER, J. A judgment was entered in favor of defendant in error in the circuit court of Coles county upon the award made by the Industrial Board of Illinois against plaintiff in error for compensation for injuries sustained by defendant in error while in plaintiff in error's employ. Plaintiff in error interposed written objections to the entry of the judgment, which were overruled, and thereafter the circuit court granted a certificate that the case was one proper to be reviewed by this court, whereupon, in due course, the clerk of this court issued the writ of error in this cause.

The record discloses that defendant in error, while in the employ of plaintiff in error and in the course of his employment, October 26, 1913, was injured, and as a result lost part of a phalange of the second finger on his left hand, and suffered also from a partially stiff joint next to this phalange; that on November 24, 1913, Dr. J. P. Deckard, who was attending defendant in error, and who was not selected by plaintiff in error, certified, over his signature, that the defendant in error's disability had ceased. The defendant in error on that same date signed a receipt for the consideration of $32.50 in full compensation for said injury. Thereafter he made application for compensation under the Workmen's Compensation Act of 1913. Counsel for plaintiff in error

and governed as to the method of reviewing the proceedings of the Industrial Board in the circuit court. Thereafter that act was amended by an act approved June 28, 1915, amending, among other sections, section 19 of said act of 1913, which provided for the methods to be followed in reviewing the decision of the Industrial Board. By that section of the act of 1913 it was provided that the review should be by this court. The amendment of 1915 provided that the review should be by writ of certiorari in the circuit court or a suit in chancery in the same court. This court held in Courter v. Simpson Construction Co., 264 Ill. 488, 106 N. E. 350, that the provision of section 19 of the Workmen's Compensation Act of 1913 providing for a review directly by the Supreme Court of the findings of the Industrial Board was unconstitutional, at the same time holding that the circuit courts of the state would have jurisdiction to issue the common-law writ of certiorari to review the decisions of the Industrial Board for the purpose of determining whether that board had jurisdiction or had exceeded its powers and acted illegally. Since then this court has considered the methods of review under amended section 19, in People v. McGoorty, 270 Ill. 610, 110 N. E. 791. The wording of paragraph (g) of section 19 of the law of 1913, and paragraph (g) of amended section 19 of the law of 1915, is identical as to the provisions governing the entering of judgment by the circuit court upon the finding of the Industrial Board. Under the wording of said section and the reasoning of People v. Mc