Opinion of the Court. perfect transcript, and the record thus perfected was recognized and acted upon in the further consideration of the case in this court. It is difficult to see any difference in principle in the two situations. That the act of signing is a mere ministerial act is held in Hake v. Strubel, 121 Ill., 321; Chaplin v. R. R. Co., 227 Ill., 166; Weber v. German Ins. Co., 80 Ill., 390, and in many other cases. Now it is a rule of general application, if not of universal application, that where a party in the prosecution of a right does everything which the law requires him to do, and fails to attain his right wholly by the neglect or misconduct of an officer charged with a public duty with respect thereto, the law will not permit the diligent party to suffer detriment by reason of such neglect; a condensed expression of the rule being that the wrongful act of the judge shall not, in law, prejudice the wellintended acts of the party. This rule is promulgated and held to apply to the signing of bills of exceptions in 3 Cyc., 44, in 3 Ency. of Pl. & Pr., 474, and in the following as well as other cases: Ferris v. Com. Nat. Bank, 158 Ill., 237; Olds v. N. C. St. Rd. Co., 165 Ill., 472; Parker v. Kuhn, 19 Neb., 394; Denver v. Capelli, 3 Col., 236; Williams v. The People, 25 Col., 251. See, also, Noble v. Houk, 16 S. & R., 421. But it is insisted by counsel for defendant in error that, whatever may be the general rule applicable to cases of this character, under the circumstances shown by the record, such rule can have no application to the case at bar because of the laches and negligence of the complaining party, Opinion of the Court. and attention is called to the fact that the counsel failed to discover that the bill lacked the judge's signature at the time they filed it in the circuit court (June 25, 1908), and allowed over seven months to elapse after the reception by the clerk of the bill from the hands of the judge before calling attention to the defect and asking an order for its correction. Such neglect and delay, they claim, ought to and does in law, defeat any effort to correct the bill at such a late day. But why should it? As a significant fact, it is to be noted that no harm or prejudice of any kind has ensued to the other party by reason of the delay. And next, why had not the counsel the right to assume that the trial judge had done what the statute makes it his duty to do on the allowance of the bill, to-wit: attach his signature to the certificate attesting its correctness? Is the lawyer bound to keep watch, at the peril of his client's rights, of the action of the judge in a ministerial matter in a situation where the counsel has done all that the statutes require of him? Nay, has he not the right in law to assume that the judge has done his statutory duty in the premises? We think it was not negligence on the part of counsel to fail to observe earlier the absence of the judge's signature. True it is that judges may be quite as likely to fall into lapses of memory as other people, and we would not desire to discourage extra vigilance on the part of counsel out of abundant caution in order to avert injurious consequences arising from such lapses, but it doesn't at all follow that a failure to observe such vigilance and caution should result in wrecking their client's case. It appears Opinion of the Court. that the attention of the circuit court was called to the defect as soon as it came to the notice of the counsel, and that we hold was sufficient. As conclusion we are of opinion that, under the circumstances of this case, the rule hereinbefore fully stated to the effect that the negligent omission of the judge in a purely ministerial matter should not prejudice the well-intended acts of the party has application to this case, and that, the signing of the bill by the judge nunc pro tunc was a legitimate and proper performance of duty. We are further of opinion that the failure of counsel for the complaining party to earlier seek a correction of the defect in the bill was not negligence, and cannot be regarded as in any way prejudicing their client's case. It follows from these conclusions that the circuit court was in error in sustaining the motion to strike off the bill of exceptions and thereupon rendering judgment. The judgment will be vaIcated and the cause remanded to the circuit court of Hamilton county with direction to overrule the motion to strike off, to then consider the bill of exceptions, and for further proceedings.. Judgment vacated. DAVIS, SHAUCK, PRICE, JOHNSON and DONA HUE, JJ., concur. Statement of the Case. THE VILLAGE OF ROCKPORT v. THE Cleveland, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY. Right to occupy road, street or alley-By railroad companies-Section 3283, Revised Statutes-Railroad company has not absolute right-To appropriate public streets, when-Power to appropriate does not cover-Appropriations for railroad yard-Evidence as to necessity for such appropriations. 1. Under the provision of Section 3283, Revised Statutes, a railroad company, in the location of its railroad, has not the absolute right to appropriate public streets of a municipality for an unlimited number of tracks over and across the same, but the court in which such proceedings to appropriate are commenced is required to determine the reasonableness of the appropriation sought to be made. 2. The power conferred upon a railroad company by Section 3283, Revised Statutes, does not authorize the appropriation of public streets of a municipality for the purposes of a railroad yard. 3. Evidence that the tracts proposed to be located over and across the streets sought to be appropriated are necessary in the use and operation of the switching yards of the railroad company, does not authorize a trial court to find that such tracks are necessary within the meaning of Section 3283, Revised Statutes. (No. 12745-Decided November 21, 1911.) ERROR to the Circuit Court of Cuyahoga county. On the second day of July, 1909, the defendant in error The Cleveland, Cincinnati, Chicago & St. Louis Railway Company filed its amended petition. in the Court of Insolvency of Cuyahoga county against the village of Rockport averring that plaintiff is a railway corporation organized under the laws of Ohio, and that the defendant is a municipal corporation duly organized and existing under and by virtue of the laws of said state. It further avers Statement of the Case. that by the terms of its charter and articles of incorporation it is authorized and empowered to locate, construct, maintain and operate a steam railroad with such main tracks, sidetracks, turnouts, switches, branch connection and other appurtenances thereto through the state of Ohio, and especially through the county of Cuyahoga in said state; that its railroad then was constructed and in operation through the village of Rockport in said. county and state; that it was necessary for the purposes of its railroad to appropriate the right or easement to locate, construct, maintain and operate in addition to the two main tracks now constructed and maintained thereover, five additional sidetracks or turnouts along and upon and across the highways within the corporate limits of said village of Rockport known as Settlement Road and Linndale Road at the place where said roads intersect and where Settlement Road crosses the right of way of plaintiff company; said tracks to be laid within the limits of the right of way of said company and approximately parallel with and at the grade of said two existing main tracks. It averred that the village of Rockport claims some right or easement in said highways and that said village further claims that the construction and maintenance of the additional tracks would destroy or impair such easement. It further averred its inability to agree with the village of Rockport as to the sum of money to be paid it as compensation for the right or easement to locate, construct, maintain and operate said tracks on and across said highway, and prayed that said court should hear and determine the questions as to the |