text:
    William Dodge v. John C. Yates.

      Clause 9, Attachment Act, Sec. 1 — Construction of Proviso — Recital in Receipt, a Sufficient Writing — Fraud.
    1. The substance only of the statements constituting the fraud is required to be reduced to writing, to coniply with the proviso contained in the 9th clause of Sec. 1 of the Attachment Act.
    2. In the case presented, it is held that a receipt given to the “former guardian ” of certain wards, and signed by the defendant as “ succeeding guardian,” is sufficient within said proviso to charge the defendant who falsely represented that he had duly qualified as such guardian.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court, of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Puterbaugh & Puterbaugh, for appellant.
    Messrs. Stevens, Lee & Horton, for appellee.
   Lacey, J.

This was a suit in attachment commenced by appellant against appellee, to recover the sum of $1,923.84, wrongfully paid over by the appellant to appellee, under the following circumstances. On and prior to July 22,1885, appellant was guardian of Jennie and Ida Watrous.. On that day he made a report to the Peoria County Court as such guardian, showing that he had in his hands the sum of $1,941.41, belonging to his wards; that at the same time he tendered his resignation as such guardian and it was accepted, and John C. Yates, appellee, was appointed as his successor; that he then stated to appellee that as soon as his appointment was completed he would pay the amount due his said wards over' to him. Afterward, on the 7th day of August, 1885, the appellee came to appellant’s office and told him that he, appellee, had filed 1ns bond in the County Court and qualified as such guardian, and exhibited to the appellant a written order signed by the County Judge accepting the appellant’s resignation and appointing the appellee as his successor, and the said appellee at the same time handed a receipt to him signed by himself as succeeding guardian, and relying on the truth of the statements of the appellee and the order and the receipt so handed him, he paid over to said appellee the said amount of money. The order of the County Judge and the receipt of appellee were introduced in evidence and are as follows:

“ County Coubt, Peoeia Co., Ill. } “July Term, 1885. j
“In the matter of the guardian of Jennie Watrous et al.
“ This day this cause coming to be heard on the resignation of W. M. Dodge, guardian of Jennie and Ida Watrous, and the court having heard the evidence in the premises, doth order and adjudge and decree that the resignation of W. M. Dodge be and the same is hereby accepted, and that John C. Tates be appointed guardian of said wards and that W. M. Dodge we discharge as such guardian.
“Lawkence W. James, Judge.”
The receipt is as follows:
“ Peoeia, August 7, 1885.
“ Received of Wm. M. Dodge, former guardian of Jennie and Ida Watrous, the sum of nineteen hundred and forty-one, 41-100 dollars (§1,941.41) in full of amount due said wards as per report filed in County Court, Peoria Co., Ill., Aug. 7, 1885.
“ John C. Yates,
“ Succeeding guardian.”

Appellant swears he would not have paid over said money if it had not been for the false representations made by appellee.

Appellee never filed any guardian’s bond or qualified as guardian for the said minors and no letters of guardianship were ever issued_ to him.

Soon after the commencement of: this suit appellee absconded and fled to Canada.

The suit was commenced Uov. 6, 1885, and the affidavit charges as grounds for attachment, “that said Yates obtained the said amount from the plaintiff by falsely and fraudulently representing that he, the said Yates, was the legally appointed guardian of Jennie and Ida Watrous, minor heirs of Samuel Watrous, deceased, and thereby induced the plaintiff to pay over to him the said sum of $1,900 belonging to said wards; that the said false and fraudulent representations were made in writing, signed by the said John 0. Yates. Upon the affidavit appellee joined issue. The parties waived a jury and the cause was tried by the court, and upon hearing the court found the main issues in favor of appellant and rendered judgment in his favor for $1,923.84, but on the attachment issue in favor of appellee and against appellant, and rendered judgment for the costs on the attachment against appellant, and from this finding and judgment appellant appeals to this court.

The attachment is based on the 9th clause of See. 1 of Attachment Act, which provides as follows: “ Where the debt sued for was fraudulently contracted on the part of the debtor: Provided, the statements of the debtor, his agent or attorney which constitute the fraud, shall have been reduced to writing and his-signature attached thereto.”

There can be no question but that the debt was fraudulently contracted on the part of appellee, and by reason thereof the first clause of said attachment provision was fulfilled. The only question remaining is whether the last clause of said act has been fulfilled, or, in other words, was there a sufficient reducing of the statement of the debtor to writing? Is the receipt above set out a sufficient compliance with the proviso of the statute ?

We think the writing of the statements sufficient. The statements in writing need not contain everything that is said, nor all the devices that may be used to complete the fraud, and need not be reduced to writing for the purpose of furnishing evidence of the fraud. It is enough if the writing contain the substance in general of the statements which constituted the fraud. It1- the fraud is consummated and the writing is given at the time, after the verbal statements which induced the fraud are made, it will be sufficient, even if the debtor had no intention at the time of furnishing evidence against himself. If the oral testimony shows the fraudulent design and negatives the statement of the facts stated in the writing, and the written facts are reasonably clear statements of the substance of the misrepresentations, then the writing is sufficient, under the statute. The above receipt shows that appellant was represented as the former guardian of Jennie and Ida Watrous, and that he had legally ceased to be such, and that appellee was then the legally constituted and qualified guardian; that he was in fact the successor, and thus he signs himself, the succeeding guardian. We think the offering of the receipt, executed as it was, clearly implied that he was then the legally appointed guardian. The order signed by the County Judge was only proof produced by appellee that his statement that he was duly appointed guardian by the County Court was true, and to induce belief. It was only collateral facts to induce credence in the mind of appellant that his false and fraudulent statement that he had been duly appointed was true. ' He stated such was the fact, and proceeded by documents to substantiate it. nevertheless the appellant, having full confidence in the integrity of appellee, may not have required this evidence, but have been willing to pay the money over on the bare statement of appellee that he was duly qualified; Appellant knew that he had tendered his resignation, and all that remained for appellee to do was to file his guardian’s bond, which he had-no doubt of his ability or intention to do, and his bare word may have been all that was required. That appellee was the guardian was the only part of the statement that need have been reduced to writing. The due qualification of appellee as guardian was the essential fact.

The statements required by statute may be made by way of recital, or giving a receipt, as well as by direct averments.

The statute was one intended to prevent fraud and must be liberally construed, and the courts should give it a reasonable construction in order to attain that end.

The Attachment Act itself provides that it shall be construed in all courts in the most liberal manner for the detection of fraud.”

We are therefore of the opinion that the error assigned is well taken, and that the court below should have also found the attachment issue in favor of appellant as well as the other one.

The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    Levi Meiers v. Alexander Pinover et al.

      Action on Third of Series of Notes — Former Adjudication — Record as Evidence — Estoppel by Verdict — Partnership of Mahers — Evidence — Admissions — Instructions.
    1. ' A fact which has been directly tried and decided by a court of competent jurisdiction can not be contested again between the same parties in the same or any other court.
    2. In an action upon the third ot.three promissory notes, given at the same time for the same consideration and as parts of the same transaction, it is held: That the record of a former suit on the other notes is admissible and conclusive of the question of the partnership of the makers, that question having been directly in issue in said suit; that the fact of the existence of the partnership being thus established, certain admissions by one of the partners that the transaction in question was a partnership matter, were properly admittdd in evidence; and that there was no error in the instructions.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Isaac C. Edwards and I. M. Hornbacker, for appellant.
    The record of the former trial only settled the matters in issue in that particular case. The findings in that case are immaterial so far as this case is concerned, and are not conclusive on either party in any subsequent suits embracing a different subject-matter as does this case. An estoppel must be conclusive as to both parties and not to one of the parties only. Clark v. Summons, 12 Iowa, 368; Towns v. Nims, 5 N. H. 259; Bernard v. City of Hoboken, 27 N. J. 412.
    There is no rule of practice more firmly established than that to form a bar the former recovery must be for the identical same cause of action. Miller v. McMannis, 57 Ill. 127; Merrin v. Lewis, 90 Ill. 505; Crabtree v. Welles, 19 Ill. 55.
    Messrs. McCulloch & McCulloch, for appellees.
    It is a rule of universal application that where a controverted question of fact, material to the issue, has been settled by a verdict of a- jury and followed by the judgment of the court, and the same question again comes in controversy between the same parties in another suit, the former verdict and judgment will operate as conclusive evidence upon the same question of fact when the second suit comes to be tried.
    A very few out of the multitude of cases that might be cited will be referred to. Sheldon v. Patterson, 55 Ill. 507 ; Gardner v. Buckbee, 3 Cow. 120 ; Edgell v. Sigerson, 26 Mo. 583; Hopkins v. Lee, 6 Wheat. 109; Hauley v. Foley, 18 B. Mon. 519 ; Henderson v. Henderson, 3 Hare, 115 ; Beloit v. Morgan, 7 Wall. 619 ; French v. Howard, 14 Ind. 455 ; Greenleaf on Evidence, See. 528.
    There is no escape from this rule in the present case. Before plaintiffs could recover in the former case they were bound to prove the partnership and the execution of the notes sued on as a firm note.
   Welch, J.

This was an action of assumpsit brought by the appellees against the appellant, Levi Meiers, and Gabriel Meiers, on a promissory note September 17, 1882, for the sum of §269, payable five months after date to- anpellees, and signed, Meiers & Co. There was no service on Gabriel Meiers. The appellant, Levi Meiers, filed three pleas— the general issue, a special plea under oath denying joint liability and partnership with Gabriel Meiers, also a plea of nonest faetum, verified by affidavit. On the trial the appellee Alexander Pinover, testified:

I am a manufacturer and jeweler and reside at 450 East 118th street, Mew York. I have known the co-plaintiffs for' about fifteen years; have known the defendants since September, 1882. I am one of the plaintiffs and a member of the firm of A. Pinover & Co. The firm of Meiers & Co. is composed of Gabriel Meiers and Levi Meiers, his father. My firm had in September, 1882, dealings with Meiers & Co. I entered the place of business of defendants in Peoria, Illinois, and found both Gabriel and Levi Meiers. I stated that I would like to show them some goods. After some conversation that I do not recollect, Gabriel said he would look at them. He and his father-, Levi, examined and picked out a number of articles of jewelry of the value of $807.

After selecting these articles Gabriel asked me what were the terms upon which they could buy them. I replied, on an average of four months; and I would take notes for three, four and five months. He replied they would take the goods and give the notes. Before delivering the goods or making out the bill, I asked who the firm was composed of. Gabriel replied that the firm of Meiers & Co. was composed of himself and Levi Meiers, his father. This was said in the presence and hearing of Levi Meiers, but he said nothing. I then delivered the merchandise and a bill for the same. The notes were not then delivered. They were dated about a week after the sale.

The sale was made in the store of Meiers & Co., in Peoria*. It was made to both of the defendants. Both Gabriel and Levi Meiers selected the goods, and both examined them before the purchase. A young man by the name of Eppenstein was in the store a portion of the time. The part taken by Levi Meiers was to examine the goods and to express his opinion upon them. The account was settled by taking their notes, payable at three, four and five months, and dated about a week afterward.

The notes were sent to A. Pinover & Co., Hew York, .through the mail. I have had no conversation with Levi Meiers in relation to the notes since they were given.

After the maturity of the first two notes and before the maturity of the one involved in this suit, appellees brought suit against appellant and Gabriel Meiers upon the two notes then matured. Gabriel suffered judgment to go against him by default, but appellant interposed the same pleas thereto that he does in this suit. Upon a trial by jury of the issues in that suit they were found for the appellees. The record in the former suit was offered in evidence in this suit and admitted in evidence over the objections of the appellant. The ground of the objection as stated is that the record of the former trial only settled the matters in issue in that particular case and that the findings in that case are immaterial so far as this case is concerned, and are not conclusive on either party in any subsequent suits embracing a different subject-matter as is claimed this suit does. We are referred to the cases.of Crabtree v. Welles, 19 Ill. 55; Miller et al. v. McMannis, 57 Ill. 126, and Merrin v. Lewis, 90 Ill. 505. These cases announce the rule that to form a bar the former recovery must be for the identical same cause of action. This case is not one involving the question of estoppel by judgment upon the same cause of action. It is a suit upon a different cause of action wherein the issues are precisely the same as in a former suit. The authorities have no application to the question of estoppel as claimed in this case. The question of the partnership was directly put in issue in that case as it is in this. If the note in this suit was given at the same time for the same consideration and as a part of the same transaction with those sued on in the former case, the verdict and judgment in that case were conclusive evidence of the existence of the partnership between appellant and Gabriel Meiers. As said in the case of Hanly v. Foley, 18 B. Mon. 519, It is a well established rule of law sanctioned as well by policy as precedent, that every material fact involved in an issue must be regarded .as determined by the final judgment in the action and can not be questioned in any subsequent proceeding between the same parties. In Hopkins v. Lee, 6 Wheat. 109, Justice Livingston said : “ It is not denied as a general rule that a fact which has been directly tried and decided by a court of competent jurisdiction can not be contested again between the same parties in the same or any other court. Hence a verdict or judgment of a court of record or a decree in chancery, although not binding on strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. In this there is and ought to be no difference between a verdict and judgment in a court of common law and a decree in a court of chancery. The same rule is announced in Bigelow on Estoppel, 30 et seq.; Sheldon et al. v. Patterson, 55 Ill. 507; Gardner v. Buckbin, 3 Cow. 120; Edgell v. Sigerean, 26 Mo. 580; Edwards v. Stewart, 15 Barb. 67; Beloit v. Morgan, 7 Wall. 619; French v. Howard, 14 Ind. 455. The distinction between the estoppel in this case and the estoppel in the cases referred to by the appellant suj)ra, is well stated in the case of Hanna et al. v. Reed et al., 102 Ill. 597. “ When the former adjudication is relied on as an answer and bar to the whole cause of action, or in other words when it is claimed to be an answer to all the questions involved in the subsequent action, then it must appear that the cause of action and thing sought to be recovered are the same in both suits. The former adjudication in such case is known as an estoppel by judgment and the judgment itself is a bar to the action. But when some specific fact or question has been adjudicated and determined in a former suit and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit without regard to whether the cause of action is the same in both suits or not. This is known as an estoppel by verdict and is equally available to a plaintiff in support of his action when the circumstances warrant it, as it is by a defendant as a matter of defense.” The same rule is announced m Tilley v. Bridges, 105 Ill. 336. It is, however, insisted by the counsel for the appellant that as the record of the former adjudication was not specially replied to the plea denying the partnership, that the record in that case is not conclusive but only prima, facie evidence. We think this point not well taken. The Supreme Court of this State, while not clearly deciding the question, seems strongly to incline against the position assumed by the counsel for the appellant on this point. Gray v. Gillilan, 15 Ill. 453; Sheldon v. Patterson, 55 Ill. 507; Greenleaf on Evidence, Sec. 528; Lawrence v. Hunt, 10 Wend. 81.

It is further insisted the court erred in admitting the evidence of Ulrich as to what Gabriel Meiers had told him as to who signed the note and what the consideration was for it. The notes in the former suit and the note in this suit all bear date on the same day. The evidence of Pinover was that there was only one sale of goods, and that the notes were received a few days thereafter corresponding in the aggregate to the exact, amount of the sale. The judgment in the former suit established the fact of the existence of the partnership on the day of the date of the note in suit. Appellant admitted on the trial that the note sued on had been executed by Gabriel Meiers. Under this evidence we hold that the-evidence was properly admitted. Greenleaf on Evidence, Vol. 1, Sec. 112; Hitt v. Allen, 13 Ill. 592 ; C. & R. I. R. R. Co. v. Collins, 56 Ill. 212. The cases of Smith v. Hulett, 65 Ill. 495, and Bishop v. Georgeson, 60 Ill. 485, are not in point. There the declaration of one partner had been admitted against the absent, partner as to the existence of the partnership. Here this class of evidence was excluded. The evidence of the partnership was conclusively proven by the record in the former suit. And all the appellees had to do was to identify the cause of action sued on as one of the series of notes given for the diamonds sold by the appellees to the firm of Meiers & Co. Even if this evidence had been improperly admitted it worked no injury to the appellant for the reason above stated.

It is also insisted that the court erred in giving certain instructions for the appellees and in refusing to give certain instructions for die appellant and in modifying others of his. The instructions given were in harmony with the view we have taken of the case and were properly given. The modifications made to the appellant’s instructions were proper and necessary and the 5th instruction asked by appellant was properly refused. The question of the partnership had been fully presented in other instructions given. We are of the opinion that there was no error in admitting the evidence or in the instructions. The verdict of the jury is sustained by a preponderance of the evidence.

Judgment affirmed.


text:
    Frederick P. Koehler and Margaretta Koehler v. Ruth Miller, Administratrix.

      Action for Damages for Personal Injuries from Falling Wall — Liability of Wife — Estate Jure Uxoris — Act of 1861 — Evidence—Instructions.
    1. Prior to April 24, 1861, when the Married Women’s Act of 1861 took effect, the husband was seized of a life estate in the equitable and legal estate of his wife, and said act did not affect such life estate where it had previously vested.
    2. A husband in possession and control of his wife’s estate under his said common-law right, is presumed to act for himself and not as her agent in the erection of a wall thereon; and she is not liable for injuries resulting from his negligence in the erection of said wall.
    3. In the case presented it is held that statements made by the husband in the absence of the wife were improperly admitted.
    4. An instruction should not single out and call special attention to a circumstance in evidence which is inconclusive in character.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Stephenson County; the Hon. John V. Eustace, Judge, presiding.
    Messrs. Barton & Barnum and H. C. Hyde, for appellants.
    Mr. J. A. Crain, for appellee.
   Welch, J.

This was a suit in trespass on the case brought by the appellee against the appellants to recover damages against the appellants for causing the death of her husband Francis O. Miller, as is claimed by their negligence. On the 16 th day of October, 1880, during a violent wind apart of the front brick wall of a building on Stephenson Street in the city of Freeport, Illinois, was blown down upon and killed appellee’s husband. Some of the counts allege that the appellants so negligently, carelessly, and defectively erected, constructed and built the house that by reason thereof it fell and killed her husband. And other of the counts allege that the appellants were possessed of the building and negligently suffered and kept it in bad repair and while in such condition it fell and killed her husband.

Two principal questions arise in this case; first, whether the wall was properly constructed and was kept in repair; second, is the appellant, Margaretta Koehler, the wife of appellant, Frederick P. Koehler, jointly liable with her husband for the injury ? On the first point the evidence was voluminous and ' conflicting and the jury having decided for appellee, if that were the only question in the case we would not be inclined . to disturb the findings. Second, is the appellant, Margaretta Koehler, the wife of Frederick P. Koehler, jointly liable for the injury % They had been married some forty years and had a son thirty-nine years of age. The premises were conveyed by deed to Frederick P. Koehler on the 24th day of March, 1853, at which time he and his family took possession thereof and continued to occupy it until 1863. There was an old building on the premises when he took possession which was occupied as his family residence. After the appellant, Frederick P. Koehler, and family, left the premises, it was occupied by tenants and was so occupied at the time of the injury. The wall that fell and caused the injury was built at his request in 1877, and was paid for by him. There was a deed made by the appellant, Frederick P. Koehler, of these premises, to John Wurth, of date December 6, 1858. Also a deed from John Wurth and wife to Henry Boyer of date April 10,1861, and a deed from Boyer and wife to the appellant, Margaretta Koehler of date July 16, 1881. This conveyance to her was long after the injury com plained of. It is however insisted that Boyer being her brother and deeding to her for the nominal consideration of one dollar, property worth several thousand dollars, showed that he was a mere trustee and held the title for her, the premises being controlled by her co-appellant and husband as her agent. A conclusive answer to this claim is found in the fact that the deed to Boyer was dated April 10, 1861, and his holding as trustee would be of that date, the equitable title vesting in her of that. date. The married women’s law did not take effect until April 24, 1861. The husband by the common law became seized, April 10, 1861, of a freehold estate for life jure uxoris in the premises and was.entitled to the possession, rents, profits, etc. 2 Kent’s Com., 130; Kibbe v. Williams, 58 Ill. 30. The statute of April 24, 1861, did not divest him of this right there being nothing to show that his marital rights were excluded by the deed. The estate jure uxoris, attached to the equitable as well as the legal estate of his wife. 1 Washburn on Real Prop., 277; Tyler on Infancy and Coverture, Sec. 286. This being so the acts of her co-appellant- and husband in constructing the wall and controlling the building would be referable to his possession and absolute control of the premises given him by the law as the holder of the life estate and not to any presumed agency for his wife. This latter would be the law only as to lands held by the statute — that vested in her after April 24,1861. The sixth instruction given for appellee by the court was otherwise. This instruction told the jury that' if Margaretta Koehler owned the premises at the time of the erection of the wall and the wall was erected by her husband, then her said husband may be presumed to have been acting as the agent of his said wife, and she is to be held responsible, etc. The eighth instruction for the appellee was erroneous. It singled out one circumstance in proof of an inconclusive character and called special attention to that, giving undue prominence to it. Garretson v. Pegg, 64 Ill. 111; Guardian M. L. Ins. Co. v. Hogan, 80. Ill. 35.

It was also error to permit Harris to testify to what Koehler said in the absence of his wife, i. e., that Mr. Koehler said in Smith’s office that when Mrs Koehler came down town she would come up and sign the lease. For the errors herein indicated the judgment is reversed, cause remanded and venire de now awarded.

Reversed and remanded.


text:
    Bela M. Stoddard et al. v. David Filgur et al.

      Dominant and Servient Estates — Drainage—Open Ditch — Right to Fill —Injunction—Parol License — Revocation—Review of Authorities.

    1. The owner of a dominant estate can not by any act of his own acquire the right to collect the surface water upon his land by artificial channels and thus flood his neighbor’s land without" his consent or at least acquiescence.
    2. When a person makes an artificial ditch upon his own land for his own accommodation, he is not obliged to keep it open as an artificial drain for the purpose of draining the lands of others.
    3. A parol license to turn water, which has been artificially collected, into a ditch upon the land of another, is valid and revocable.
    4. In the case presented, it is held that the owner of the dominant estate is not entitled to an injunction to prevent the filling up of an open ditch on the servient estate.
    [Opinion filed December 11, 1886.]
    Appeal from the Circurt Court of Woodford County; the Hon. S. S. Page, Judge, presiding.
    Mr. M. L. Newell, for appellant.
    “ The expenditure of money or labor by one man on the land of another, under a license given by the owner, will estop the owner from revoking the license and wresting the former from his possession of the land. Where the licensee has expended money on the faith of the license, and put himself in a position that he would be seriously damaged by allowing it to be revoked, the estoppel is applied in the same manner as it is to those cases of acquiescence and silent consent. A parol license, when executed, may become an easement on the land, and where acts have been done in reliance upon a license, the licensor will be estopped from revoking it to the injury of the licensee. This rule, that a license to do something on a licensor’s land, followed by expenditure on the faith thereof, is irrevocable, rests upon the principle of estoppel because the parties can not be placed in statu quo. Equity treats a license thus executed as a contract giving an absolute right. A license can not be revoked or withdrawn as long as it is essential to the possession or enjoyment of a vested right or interest which has been created by the licensor, placed with his assent where the continuance of the license is essential to its enjoyment. This is a branch of the rule that no one can withdraw a promise or declaration made with a view of inducing others to act after they have acted upon it, and thus placed themselves in a position where they must necessarily suffer if it be withdrawn.” Herman on Estoppels, 439, citing Dyer v„ Cannall, 4 Penn. 353; Bridge Co. v. Bragg, 11 N. H. 702; Rhodes v. Otis, 33 Ala. 578; Dark v. Johnson, 56 Penn. 164; Huff v. McAuley, 53 Penn. 206.
    This doctrine is substantially adopted in Iowa and Indiana. Wickersham v. Orr, 9 Iowa, 260; 1 Washburn on Real Estate, 549; Russell v. Hubbard, 59 Ill. 335. “ The law is solicitous to prevent all kinds of imposition and injury from confidence reposed in the acts of others; and a parol license to do an act <>n. one’s own land, affecting, injuriously, the air and light of a neighbor’s house, is held not to be revocable by such neighbor after it has been once acted upon and expense incurred. Such a license is a direct encouragement to expend money, and it would be against conscience to revoke it as soon as the expenditure begins to be beneficial. The contract would be specifically enforced in equity. Such a parol license, to enjoy a beneficial privilege, is not an interest in the lands within the Statute of Frauds.” 3 Kent’s Com. 453; 1 Washburn on Real Estate, Book 1, Chap. 12, Sec. 13.

      “ It matters not whether the license is granted by deed or by • parol; as a mere license, it is always revocable at the will of the licensor; but when coupled with an interest in land and executed, it is irrevocable, and this constitutes the distinction between revocable and irrevocable licenses.” Woodward v. Seeley, 11 Ill. 157.
    Mr. C. H. Chitty, for appellees.
    It seems clear from the evidence of both Filgur and Stoddard, that Stoddard never was authorized to open or keep open that ditch. And even if he had been, such license or authority giving such right is within the Statute of Frauds and void. Such a license is revocable at any time, even though the licensee may have incurred expenditures of money upon the faith of such license. St. Louis Nat. Stock Yards v. Wiggins Ferry Oo., 112 Ill. 384; Woodward v. Seely, 11 Ill. 157; Tanner v. Volentine, 75 Ill. 624; Forbes v. Balenseifer, 74 Ill. 183; Mumford v. Whitney, 15 Wend. 380; Cook v. Stearns, 11 Mass. 533; Dodge v. McClintock, 47 N. H. 386; Houston v. Laffee, 46 N. H. 505: 2 Am. Lead. Cases (5th Ed.), 557-560; Babcock v. Utter, 32 How. 439.
    The rule governing the rights of the owners of upper and lower adjoining lands in this State, as to what each of them may do upon his own land affecting the flowing of surface water, has been fully settled by the following decisions: Gilham v. Hadison Co. R. R. Co., 49 Ill. 484; Gormly v. Sanford, 52 Ill. 158; Mellor v. Pilgrim, 3 Ill. App. 476; S. C., 7 Ill. App. 306; Hicks v. Silliman, 93 Ill. 255; Herrington v. Peck, 11 Ill. App. 62; Peck v. Herrington, 109 Ill. 611. See also White v. Chapin, 12 Allen, 516; Smith v. Miller, 11 Gray, 145; Dickinson v. City of Worcester, 7 Allen, 19; Tryer v. Warne, 29 Wis. 511; Goodale v. Tuttle, 29 N. Y.466; Miser v. Caldwell, 7 Nev. 363; Kauffman v. Grieseman, 26 Pa. 26; Miller v. Laubach, 47 Pa. 154; Livingston v. McDonald, 21 Iowa, 160.
   Welch, J.

This was a bill filed by appellants against the appellees to enjoin them from filling up an open ditch dug on the lands of the appellee Filgur. A temporary injunction was granted which, upon the hearing, the court dissolved and dismissed the bill, from which order this appeal is taken. The evidence shows that the appellant, Bela M. Stoddard, is the owner of the southeast quarter of section two in Minonk Township,- Woodford County, and that the appellee, David Filgur, is the owner of the southwest quarter of said section-That Stoddard was the owner of the dominant and Filgur of the servient estate. That the surface water from a large part of Stoddard’s land flowed entirely to and over Filgur’s land. The water flowed over the surface among the grass and other vegetation in slight depressions of the surface of the ground, ranging from three or four to several rods in width. Filgur, in 1875, dug an open ditch on his own land, a distance of sixty-seven rods. The ditch was six feet in width at the top, two feet at the'bottom, and three and one-half feet in depth. Stoddard, in 1882, constructed from fifteen to twenty tile drains, running from various portions of his land, all connected with and bringing their water together into a ten-inch tile drain, which discharged its waters into the open ditch two and one-lialf feet below the natural surface of the ground. Filgur, in 1885, had constructed two tile drains, one on each side of this open ditch, and was proceeding to fill up this open ditch level with the, surface of the ground, when this bill was filed to enjoin him from filling it up. The legal questions presented for our consideration by this record are: 1st. What are the relative rights of the owners of the dominant and servient estate ? 2d. What if any right can the owner of the dominant acquire in the servient estate under a parol license? We shall consider the questions in the order stated.

The rule announced by the Appellate and Supreme Courts of this State as to the relative rights of the owner of the dominant and servient estate, is clearly and tersely stated by Pillsbury, P. J., in Mellor v. Pilgrim, 3 Ill. App. 476. “The owner of a superior heritage can not by any act of his acquire the right to collect the surface water upon his own land by artificial channels, and thus flood his neighbor’s land, without his consent. He can not impose upon the land of an adjoining proprietor without his assent, or at least acquiescence, the additional burden of having the surface water converted into a stream when it is discharged upon his land. He is not obliged to accept it to his injury, in larger quantities or at different times than he otherwise would, but for the voluntary act of his neighbor.” In Gormley v. Sandford, 52 Ill. 158, the rule is announced, when a person makes artificial ditches upon his own land for his own accommodation, he has a perfect right to fill them up to the natural surface when they are dug, and that he is not obliged to open or keep open artificial drains for the purpose of draining the lands of others. Gilham v. Madison Co. R. R. Co., 49 Ill. 484; Hicks v. Silliman, 93 Ill. 255; Peck v. Harrington, 109 Ill. 611. Tested by the rule announced svpra, the appellants had no right to an injunction.

It is, however, insisted by the counsel for appellants that they had a license to drain into the ditch, from Filgur. Assuming that appellants had a parol license to drain into this ditch, what right did they acquire to the use of this ditch by virtue of the license ? In Woodward et al. v. Seely et al., 11 Ill. 157, Trumbull, J., said : “What then is a license? Simply to do something which, without such permission, would have been unlawful. It matters not whether granted by deed or parol; as a mere license it is always revocable at the will of the licensor, but when coupled with an interest and executed, it is irrevocable, and this constitutes the distinction between revocable and irrevocable licenses.”

When the license is coupled with an interest in land, or of such a character that the interest could not pass by parol, then a writing is essential to the creation of the interest, otherwise no interest passes. The license in this case under the rule announced supra was revocable. It is, however, insisted that this rule has been modified and we are referred to Russel v. Hubbard, 59 Ill. 335, Kamphouse v. Gaffner, 73 Ill. 453, and Forbes v. Balenseifer, 74 Ill. 183. In the case of Eussel v. Hubbard, 59 El. 335, where the owner of a lot of ground contemplating the erection of a frame building thereon, the owner of a brick house situated on the line of an adjacent lot proposed to him, if he would build of brick, he might use the brick wall of his house for the purpose of attaching thereto the proposed new building. The proposition was accepted, and the new house was built of brick and attached to the wall of the other building. It was held that, while the license to use and attach to the wall might have been revoked prior to the execution of the purpose of the license, jet, after its execution by the expenditure of money in the erection of the new building as induced by the permission, the license was irrevocable. This case as held in 73 Ill. supra, was held to be limited to cases of party walls. "We do not understand the dictum announced in the cases in 73 and 74 Ill. supra, to be in conflict with the rule announced in 11 Ill. supra, where the rule announced in Gale and Whately’s Law of Easements” was approved, that a man may in some cases by parol license, relinquish a right which he has acquired in addition to the ordinary rights of property, and thus restore his own and his neighbor’s property to their original and natural condition ; but he can not hy such means impose any burden upon lands, in derogation of such ordinary rights of property. As for instance, a parol license will be valid for building a wall in front of his ancient windows, while a similar permission to turn a spout on his land from a neighboring house, will be invalid and revocable.” The rule as announced is approved in Tanner v. Volentine, 75 Ill. 624, and in National Stock Yards v. Wiggins Ferry Co., 112 Ill 384, where it is said the case of Russel v. Hubbard seems somewhat at variance with the case of Woodward v. Seely, but does not propose to overrule or question it. In Kamphouse v. Gaffner, 73 Ill. 453, we said Russel v. Hubbard must either be considered as limited to party walls or be considered as overruled, and in Forbes v. Balenseifer, 74 Ill. 183, it is rather intimated that Russel v. Hubbard is to be limited to the facts of that case. Woodward v. Seely has never been overruled or directly questioned by this court that we are aware of, and we think it must govern this case. What was said in the case of Woodward v. Seely, supra, may with equal propriety be said of this case: Tested by the law as here stated the license in this case was clearly invalid as it did impose a burden upon the land of defendants in derogation of what ordinarily belonged to it, and there can be no difference whether water is turned upon the land of another by means of a spout or mill-dam.” “jSTor can the complainants call upon a court of equity to enforce the license upon the grounds that they have made valuable improvements and expended their money relying in good faith upon it;” “ before acting so imprudently, they should have acquired permission by deed to overflow the land of the defendants.” We do not understand the rule announced in Morse v. Copeland, 2 Gray, 302, to be in conflict with the rule announced by the Supreme Court of this State, but if it is, it.would not he binding on us. The question in this State is no longer an open one. It is store decisis. There was no error in dissolving the injunction and dismissing the bill.

Deeres affirmed.


author: Lacey, J.

text:
    William McFarlane v. John Pierson.

      Landlord and Tenant — Abandonment—Action to Recover for Worlc and Labor Performed — Claim of Eviction, not Sustained — Refusal of Landlord to Malee Repairs — Remedies of Tenant.
    1. Where the landlord in violation o£ his covenant fails to make repairs, the tenant may make them himself, charging the expense against the landlord, or sue for damages for breach of covenant.
    2. In an action by a tenant against the landlord to recover for work and labor performed by him on the demised premises, after an alleged eviction, it is held: That the failure of the landlord to furnish material for repairs did not amount to an eviction; that certain evidence touching such failure was improperly admitted; that this error was cured by subsequently excluding said evidence; that the evidence does not show such misconduct on the part of the landlord toward the servants of the tenant, nor such action touching the matter of his boarding as to amount to an eviction; and that certain instructions were erroneous, one of which is particularly objectionable because unsupported by any evidence presented.
    [Opinion filed December 11, 1886.]

      Appeal from the Circuit Court of Will County; the Hon. Dorrence Dibell, Judge, presiding.
    Messrs. Flanders & Shutts, for appellant.
    Mr. J. W. D’Arcy, for appellee.
    It is well settled that where a tenant is evicted by the landlord, he is released from the payment of rent. Wood’s Landlord and Tenant, 793; Taylor’s Landlord and Tenant, Sec. 379; Smith v. Wise, 58 Ill. 141; Leopold .v. Judson, 75 Ill. 536; Haynor v. Smith, 63 Ill. 430.
    An eviction may be produced by any act of the landlord or any person acting under his authority, which deprives the tenant of the beneficial enjoyment of the premises. Wood’s Landlord and Tenant, 793.
    In order to produce an eviction it is not necessary there should be an actual physical expulsion, for the landlord may do many acts tending to diminish the enjoyment of the premises, which will amount to an eviction and exonerate the tenant, if he quits possession, from the payment of rent. Taylor’s Landlord and Tenant, See. 380, Note 1; Cohen v. Dupont, 1 Sandf. 260.
    “ Whether the acts complained of amount to an eviction depends upon the circumstances, and is a question in all cases for the jury.” Haynor v. Smith, 63 Ill. 430; Lynch v. Baldwin, 69 Ill. 210.
   Lacey, J.

Appellee sued appellant before a Justice of the Peace on account and recovered judgment for $125, whereupon appellant took an appeal in the ease to the Circuit Court where the cause was again tried by a jury and verdict rendered in appellee’s favor for $180, upon which verdict judgment was rendered and appeal taken to this court.

It appears from the evidence that appellant, the lessor, leased to appellee a certain farm in Jackson Township in the County of Will by lease in writing bearing date March 3, 1885.

The lease provided that appellee was to have the west room and equal rights of kitchen and upstairs-of the house- on the premises and also to have orchard and one-third of the apples and half the dried apples. Lease was to continue from the 1st March, 1885,;to 1st .March, 1886, The appellee was to pay for the use. thereof as follows: Two-tliirds of all the corn, oats and potatoes, hay and hogs grown, on the said devised premises — corn to he in crib, oats in bin, and hay stacked in yard. Appellee was to keep up the fences,'and also furnish ■ the material. This latter provision was probably a mistake in drawing up the lease.. It was no doubt to be appellant who was to furnish the material. Appellee was to have ten or fifteen-cows to milk and the butter was to be equally divided' between both parties. Appellee was to have six sows and the pigs were to be divided as above.

Appellant was to furnish teams, tools, feed and seed necessary'to work the farm, with several other provisions not necessary to mention, and the women were to do the cooking, washing and. mending for the family and -to clean rooms at the rate of $50 per year, and if the appellant had any men to work he was to pay at the rate of 50 cents per week, etc.

The appellee removed on the place and proceeded to fulfill his part of the covenants in the lease on the 5th of March, 1885. Appellant, lived in part of the same house with his two sons, one about twenty and the other about eight years old, and appellee’s wife proceeded to cook for them and do the work generally, as the lease provided. Appellant furnished his own provisions. After about two months and after doing plowing attd considerable work under the lease, appellee became dissatisfied and abandoned the premises and refused further to perform his covenants in the lease.

It is insisted that appellee was evicted by the wrongful acts of the appellant and was excused from the further performance of his covenants, and, that he may,- as he did do in the court below, recover for the work and labor performed on the premises by him as for work and labor performed. On the other hand the appellant contends that,.the appellee abandoned the, leased premises without legal excuse and that he has no right to recover for anything he may have done under the lease.

This was the only issue tried before the court below and the alleged errors of the court and jury arising on that hearing we are called on to review here. There was evidence admitted by the court but afterward excluded, going to show that that portion of the lease which required the appellee to furnish the material to repair, the fence was a mistake and that the actual agreement was that appellant should furnish such material.

This testimony was admitted at first on the idea that in case appellant was obliged to furnish the materials and failed to do so, that justified appellee in throwing up the lease and abandoning the premises, in fact, that such failure amounted to an eviction.

It was undoubtedly error on the part of the court to admit such evidence. In case a landlord in violation of his covenant fails to make repairs the remedy of the tenant is to make repairs himself and charge the expense against the landlord, or else sue on such breach of covenant and recover the damages occasioned thereby. Sedgwick on Damage* side page 198; Wood’s Landlord and Tenant, Sec. 380, 442. But as far as the error in admitting the evidence was concerned the court cured it by afterward excluding it.

But under the issue in the case before "the jury the only question was whether the appellee was evicted. That is, was the conduct of appellant such as to deprive appellee of the full and peaceable enjoyment of the premises % It was wholly immaterial whether a mistake had been made in the lease or whether, conceding that the lease and agreement was that appellant was to furnish the material to fix up the fences, he failed to do so; for the reason that if such failure existed it was no legal ground for abandoning the premises by appellee.

Yet the court gave the appellee’s 1st, 2d, 3d, 4th and 6th instructions, which lay down the law obtaining in case of ordinary contracts when, if the one party fails to perform an essential part thereof, the other may also refuse.

The sixth instruction especially would be understood by the jury as holding that in case appellant was to furnish the lumber to build the fence and failed in doing so, the appellee might abandon the premises. and sue for his labor. It tells them in general terms that if one party is ready and willing to perform a legal contract and partly performs it and is prevented by the other from completing such performance, then such contract may be abandoned, etc., leaving the jury to say what amounted to such prevention without reference to the facts of the case on trial. In regard to the misconduct on the part of the appellant which is claimed amounted to an eviction, it is only necessary to remark that we see no such evidence as would justify appellee in abandoning the premises.

It seems from the evidence that appellee’s wife and her hired girls did the housework during nine weeks for appellant and his two boys as well as for her husband and his hired men, for all were living in the house together on the farm. Appellee had one hired girl one and one-half weeks who was the sister of his wife ; she quit, and she got another who stayed four weeks; the last girl was only fifteen years old, the first was twenty-seven years old. Mrs. Pierson swears that the first one did not want to stay because appellant objected to her work, and he objected to the second girl because he did not like her. McFarlane and his boys had separate rooms, and she and her girl did the work for both families and the work about the house. 'Mrs. Pierson had a child born to her about twenty days after she went on the place. She testified that appellant at one time said to her sister: ‘‘Wouldn’t you like to kiss me?” “ Wouldn’t you rather kiss me than, my son John?”

Appellant testifies that he did not recollect making the proposition to Mrs. Pierson’s sister to kiss him but might have done so jokingly. This was all the evidence of any indecent behavior on the part of appellant toward Mrs. Pierson or her girls. It does not appear that any of the ladies took, any serious offense at it at the time as the girl did not leave on that account, but because appellant did not like her work. Then after that a second girl was there four weeks and no indecent or improper proposals were made to her by appellant and she loft because appellant did not like her work. This is what Mrs. Pierson thinks. It would seem the excuse for abandoning the place on account of indecent conduct of appellant toward the hired girls of appellee, was an afterthought not regarded sufficient at the time. That ground for abandonment should be laid out of the question. This girl who was only fifteen years old did cooking in such manner that appellant as he claims had just cause to complain. She would bake up bread enough at one time to last from six to nine days and the bread would become so hard he could scarcely eat it. This is not contradicted. It would appear that he had just ground for complaint. But jet that be as it may, the mere fact, and that is all there is of it, that appellant complained of the manner in which his work was done would not amount to an eviction. If his complaints were such that Mrs. Pierson could not satisfy him in regard to the work and they were unjust, she might have refused to board him and have refused to comply with that covenant in the lease. It was not necessary to the enjoyment of the farm that appellee should be permitted to board appellant. If there was any profit in it damages could be recovered by appellee for being refused the privilege, but this would not amount to an eviction. There appears to be no sufficient evidence in this case upon which the jury would be justified in finding that there was an eviction.

The tenth of appellee’s instructions submits to the jury the question whether or not the appellant did not “ use impropei’ language or make indecent or immodest proposals to appellee’s wife,” etc.

There is no evidence that anything of the kind, in the remotest degree, ever took place, and it was very improper to submit such question to the jury. It seems that Mrs. Pier-son did the work for both families for some time after the last girl left and finally appellee got tired and dissatisfied and abandoned the premises and we think without just cause. The appellant had no intention to deprive the appellee of the full use and enjoyment of the premises and never attempted so to do. Lynch v. Baldwin, 69 Ill. 210 ; Hoyner et al. v. Smith et al., 63 Ill. 430.

For the reasons above indicated the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


text:
    Henry R. Danforth v. Herman Classen.

      Judicial Officers — Sow far Protected by Official Character — Justice of Peace — Illegal Commitment to County Jail — Ministerial Acts — Action of Trespass — Evidence—Instructions.
    1. The judicial character of a Justice of the Peace only protects him from personal liability when the act complained of is within his jurisdiction. ■ •
    2. In an action of trespass against a Justice for false imprisonment, it is held: That the warrant, trial and fine of plaintiff for maintaining a nuisance, were regular and within the jurisdiction of the Justice; that the order of commitment, which was in the form of a commitment to bind the defendant over to the County Court, placing no limit upon the imprisonment, was irregular and not justified by the judgment; that the issue of the writ was a ministerial act; that the evidence touching plaintiff’s illness and its cause was properly admitted under an amendment to the declaration; and that the instructions, though not strictly accurate, were sufficient.
    ' 8. It seems that Sec. 1, Act of April 12,1879, does not give the Justice the option to designate the place where the offender may be imprisoned, but that said place must be fixed by city or village ordinance.
    [Opinion filed December 11, 1886.]
    Appeal from the County Court of Iroquois County; the Hon. S. C. Bovie, Judge, presiding.
    Statement of the case by Lacey, J. The appellee commenced suit in an action of trespass for false imprisonment in the sum of $5,000. Verdict of guilty and $500 damages; remittitur by appellee of $200 and judgment for $300; appeal by the defendant to this court.
    There was an ordinance in the Village of Danforth against keeping and maintaining nuisances, keeping offensive privies, pig-stys, etc. The appellee was a resident of the village. On the 13th day of June, 1884, a complaint in writing sworn to, was filed before H. R. Danforth, the appellant, who was a Justice of the Peace in the said village, against the appellee, charging him with maintaining a nuisance within the corporate limits of said village. Thereupon appellant as such Justice issued a warrant for the arrest of the appellee, directed to any Constable, commanding him to bring the body of the appellee before him forthwith unless the appellee gave bail for his appearance in the full amount of the demand of the village, and if bail-be entered on the back of the warrant, then appellee was commanded to appear before him on the 18th day of the same month, at 9 o’clock a. m., to answer certain demands of the village against him, of the nature of a penalty not exceeding 8200, for violation of the ordinance mentioned. This warrant the appellee placed in the hands of Constable G. W. Bailey to execute, and ordered Bailey to arrest appellee. On the same day said Constable arrested the appellee on the said warrant, and he not giving bail was brought before the appellant and arraigned and put on his trial, and after hearing the appellant fined him in the sum of 825 and costs of suit, and rendered judgment against him for that amount, and upon the appellee refusing payment, an order was entered against him following said judgment order, as follows : “ Defendant refusing to pay fine or give bail it is ordered that the said Herman Classen be committed to the county jail until fine and costs be fully paid.”
    Thereupon appellee refusing to pay said fine and costs or give bail, the appellant issued an order for the commitment of the appellee in the county jail in substance, as follows : It was directed to any Constable of said county, and to the Sheriff or jailor of said county reciting that appellee had that day been examined before the appellant, a Justice of the Peace in the county aforesaid, on a charge of violation of village ordinance preferred against him on the complaint in writing, under oath, of John Overacker, and it appearing probable from the evidence of-sworn and examined before him that said appellee was guilty of said charge, to-wit: By keeping an offensive pig-sty, privy and manure pile in violation of Art. 10, Sec. 1, Ordinance Ho. 15. And the appellee .having failed to give bail for his appearance at and on the first day of the next term of the County Court as required, we, the people, command you, the said Constable, forthwith to convey said appellee to the common jail of said county, and him deliver to the keeper thereof, and you, the said keeper or jailor, are hereby required to receive into your custody the said appellee and him safely keep until discharged in due process of law ; and for so doing this shall be your sufficient warrant. Thereupon the mittimus was placed in the hands of the Constable, George W. Bailey, and appellant ordered him to go to Watseka, the county seat, with him and put him in jail. The Constable thereupon took appellee and conveyed him to Watseka, and offered him to the Sheriff, and the Sheriff would not receive him on account of the insufficiency of the writ, and the Constable thereupon discharged the appellee.
    The Village of Danforth is about four miles from Gilman, which distance there is no railroad, and from Gilman there is communication to Watseka by rail. The Constable resided in Gilman and appellant when the warrant for arrest was issued took it to Gilman and placed it in the hands of the same Constable with orders to arrest appellee ; appellee after he was discharged in Watseka returned on the train to Gilman, and went from there in the night to his home at Danforth on foot. It rained after he got started from Gilman, and when he got home it must have been about 4 o’clock a. m ; apj>eilee as he testified, “took awful sick after that; I caught cold.” “It was the weather and excitement of the arrest that made me sick.” The cold “ lasted over a week, and there was a week he could scarcely do anything.” The declaration was at this point in the trial amended so as to admit this testimony. The appellant moved the court to exclude the evidence, but the court refused and allowed the evidence to remain before the jury. The appellant filed special pleas of justification setting up the fact of his being Justice of the Peace and facts of the proceedings, the legal trial, judgment and mittimus as a justification.
    Messrs. Kay & Euans, for appellant.
    Judges of limited and inferior authority are not liable to a civil action from any judicial act within their jurisdiction. Bradley v. Fisher, 13 Wall. 335; Randall v. Brigham, 7 Wall. 523.
    When the record shows that the court had jurisdiction of the subject-matter and of the person of the parties, neither the court nor those acting under his authority can be held liable in trespass, although the proceeding may be irregular and erroneous. Von Kettler v. Johnson, 57 Ill. 109; Outlaw v. Davis, 27 Ill. 465.
    If the Justice of the Peace had jurisdiction of the question he is not liable. Flack v. Ankeny, Breese, 187; Lancaster v. Lane, 19 Ill. 242; Moak’s Underhill on Torts, 188-194.
    Even if the Justice, believing he was bound to do so, had committed the accused to the county jail until he should give bail for his appearance at the next court having jurisdiction, it was hut an error of judgment, and that having jurisdiction of the person of the plaintiff and of the subject-matter, he was protected from an action for false imprisonment. Kenner v. Morrison, 12 Hun, 204; Rains v. Simpson, 50 Texas, 495; S. C., 32 Am. Rep. 609.
    “ I prefer to place the decision on the broad ground that no public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which may have prompted it. Such acts when corrupt, may be punished criminally, but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of an official duty. The rule extends to the Judges from the highest to the lowest; to jurors, and to all public officers, whatever name they may bear, in the exercise of judicial power.” Weaver v. Devendorf, 3 Den. 117.
    When a Magistrate has jurisdiction over the offense and over the person of the offender, his acts, though ever so erroneous, will not make him a trespasser; and a conviction by him, still subsisting and valid upon its face, on a subject within his jurisdiction, is a legal bar to an action for anything done under such conviction. Lancaster v. Lane, 19 Ill. 242. See also, Little v. Moore, 1 Southard, 74; S. C., 7 Am. Dec., 574; Gregory v. Brown, 4 Bibb. 731; S. C., 7 Am. Dec. 731; Reid v. Hood, 2 Nott & McC. 168; S. C., 10 Am. Dec. 582; Flack v. Harrington, Breese, 213; Adkins v. Brewer, 3 Cow. 206; Bailey v. Wiggins, 5 Harrington, 462; S. C., 60 Am. Dec. 650.
    Messrs. Doyle, Morris & Pierson and Payson & Raymond, for appellee.
    Where an inferior court is guilty of excess of jurisdiction, trespass may be supported for anything done under such proceedings. 58 Ill. 353.
    Ignorance of the extent of his power is no excuse for the Magistrate. Thomas v. Hinsdale, 78 Ill. 259.
    A tribunal proceeding under limited and special powers decides whether it has jurisdiction or not at its peril, and hence it is that process issues from a court or to the ministerial officer who executes it. Wise v. Withers, 3 Cranch, 331.
    The issuing of process after judgment is purely a ministerial act. Briggs v. Woodwell, 10 Mass. 356.
   Lacey, J.

The appellant contends that the above judicial proceedings fully justify him and that as Justice he could not be held responsible even if he had made some mistake in the exercise of the functions of his office. He also claims complete justification under Sec. 1 of an act entitled “ An Act to provide for the punishment of persons violating any of the ordinances of the several cities and villages in this State,” approved and in force April 12, 1879; see Session Laws 1879, page 70. The Act so far as it relates to the action of appellant is as follows : That a warrant for the arrest of offenders may issue in the first instance upon the affidavit of any person that any such ordinance [ordinance of city or village] has been violated and that the person making the complaint has reasonable grounds to believe the party charged is guilty thereof; and any person arrested upon such warrant, shall, without unnecessary delay, be taken before the proper officer to be tried for the alleged offense. Any person upon whom any fine or penalty shall be imposed, may, upon the order of the court or Magistrate before whom the conviction is had, be committed to the county,, jail or ,c laboose, city prison, workhouse, house of correction, or other place provided by such cities or villages by ordinance for the incarceration of such .offenders until such fine, penalty and costs shall be fully paid: Provided, that no such imprisonment shall exceed six months for any one offense.”

In regard to the power .of the appellant to issue the warrant, we are inclined to think thát the affidavit of JV Overaker was full justification. The writ was a warrant in every respect except bail was allowed till a certain day named ; but this permission was for the benefit of appellee if he saw proper to take advantage of' it, but as he did not the writ amounted to the same as might have been issued under the plain provisions of the- statute.' The appellee; therefore, should not be allowed to enter any objections to the form of the warrant. - The trial and fine appeared to be regular' and no exception could be taken to that even if it had been irregular, as appellant was protected under his character as a judicial officer.

It now remains to be seen whether appellant overstepped the bounds of his jurisdiction in entering the order of commitment. Next,'if such order was regular, whether the order justified the peculiar mittimus issued and the verbal order to take the appellee to jail. The proper solution of the first point in the above question depends upon the interpretation that is put on the statute: Does the statute mean that before any imprisonment can be ordered by the .Magistrate there must be an ordinance passed by- the city or village providing 'for the place where the offender may be imprisoned, or is the act absolute without such ordinance as to the-places named in the act, “county jail, calaboose, city prison, work-house and house of correction,” the Justice having the option to send him to either at pleasure and desire, the last class simply referring to places not named which shall be fixed by ordinance, those named being regarded as having been fixed by statute? We do not speak with the, utmost confidence upon what ought to be the proper interpretation put upon this statute in that particular, but we are inclined to hold that the place should be fixed by city or village ordinance, and it should be determined thereby what place of those named should be the one, as well as to fixing some place not named.

The fact that the city or village is entitled to all fines and penalties recovered, and is also liable for the costs of keeping those upon whom fines are imposed in confinement, seems to be a good reason why the Legislature would desire to give the city the entire control of the matter of imprisonment. And in a case of so doubtful a meaning of the section it seems such consideration ought to be sufiicient to turn the scale. And then it would seem improper to give the Magistrate such power as to allow him to choose the place; perchance send an offender for some slight offense miles away to the county jail, when there was a calaboose in the city or village better suited.

We think also the order of commitment should also fix the limit at six months, otherwise the jailor or beeper of other place of confinement would not know how long the party to be imprisoned would have to stay if he failed to satisfy the fine and costs. It should not be left to such officer to find out and be the judge of what the law is on the subject. It is the business of such officer to follow the commands of the committing writ.

But what authority had the appellant to issue the committing order which he did? It bears no semblance to the judgment.and order of commitment in his docket. It is in form the same as a warrant of commitment in case where a party is bound over by a committing Magistrate where there is a criminal charge preferred, which the Magistrate has no jurisdiction to try, but has jurisdiction to bind the party over to appear and answer to a higher court. The writ issued showed that the party in custody was probably guilty of violating a village ordinance; not that he had been fined and committed till fine and costs were paid. It showed that appellee had been bound over to appear to the next term of the County Court, and had failed to give the required bail and had been committed till he did so, or otherwise legally discharged. The amount of bail indorsed on the back of the warrant was “ $50 and costs.” The Sheriff could see, and did see, that the County Court had no jurisdiction to try such a case, and refused to receive the appellee or put him in jail. But the imprisonment had been effected by this illegal and unwarranted order and verbal direction by the appellant.

But it is insisted that the appellant is protected by virtue of his judicial character as a Justice of the Peace, and that the issuing of the warrant in question was a judicial' act for wliich the appellant can not be called to account in an action of trespass for false imprisonment.

This will depend upon whether the issuing of the writ was a judicial act within the jurisdiction of the Justice.

We are satisfied that it was not, and also that the issuance of the writ was not a judicial act. There was no judgment or semblance of foundation for it. Ho such proceeding as it recited or anything like it had ever taken place before the appellant.

In Board of Trustees v. Schroder et al., 58 Ill., a decision that was rendered prior to the passage of the above Act of 1879, it was held: “For the breach of town ordinance the party forfeits a sum of money that may be recovered by the corporation in an action of debt; but the proceeding is not criminal in form. The Justice of the Peace has no more right to order the committal than he would at the end of a trial between two individuals to order the defendant to be imprisoned; and when f officers assume to imprison without authority of law, or with- | out any of the forms or processes usual and necessary to be employed, they become liable for false imprisonment * * *

The Constitution prohibits it except by due process of law.” In Thomas v. Hinsdale et al., 78 Ill. 259, it was held, if a Justice of the Peace issues an attachment when not authorized by law to do so, his ignorance as to the extent of his authority is no excuse. The issuing of final process after judgment is purely a ministerial act. Biggs v. Woodwell, 10 Mass. 356. Even if the judgment had been authorized the appellant did not issue the kind of a writ called for by it, and his act in this particular being ■ ministerial and outside of his judicial authority, he is liable in the kind of an action brought on account of the false imprisonment. It is objected that the evidence concerning appellee’s illness and its cause was improperly admitted and the case of Miles v. Weston, 60 Ill. 361, is cited for authority against it; but in this case it will be observed, the declaration contains no averments under which the evidence could be given. In this case, by the amendment to the declaration, there were such averments.

There was evidence in the case tending to show malice; the instruction therefore on that head was not improper. Some other instructions were not strictly accurate, but we think they were not so seriously defective or misleading that the jury could have been misled to appellant’s injury.

The judgment of the court below is therefore affirmed.

Judgment affii'med. .


text:
    The Chicago, Burlington & Quincy Railroad Company v. James Sullivan.

      Railroads — Action for Damages for Personal Injuries Sustained by Passenger in a Collision — Pleadings—Variance—Evidence—Recovery of $5,000, not Excessive — New Trial — Newly Discovered Evidence.

    1. In an action to recover damages for personal injuries suffered by the plaintiff in a collision while a passenger on the road of the defendant company, it is held: That there was no variance between the declaration and the testimony; that proof of the breaking down of the plaintiff’s nervous system and that his nerve trouble might result in death, was properly admitted; that the rules of pleading did not require the plaintiff to set out in his declaration the evidence relied upon; that the evidence sustains the verdict for the plaintiff; that this court will not interfere with the verdict, the credibility of the witnesses and weight of the evidence being questions for the jury; that the verdict for $5,000 is not excessive; that the court below properly refused to grant a new trial on the ground of newly discovered evidence.
    2. Newly discovered evidence, which could have been procured by due diligence, or which is merely cumulative, unless decisive in character, is insuEcient as ground for a new trial.

      [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of La Salle County; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Samuel Richolson, O. F. Price, and Richolson & Gentleman, for appellant.
    There is a fatal variance between the allegations and the proofs.

      “ The primary object of a special count in a declaration is to apprise the defendant of the true ground upon which the plaintiff claims to recover and give him notice of what he will be called upon to meet upon the trial.” R. R. Co. v. Wilcox, 12 Ill. App. 47; T., W. & W. R. R. Co. v. Briggs, 85 Ill. 80 ; City of Bloomington v. Goodrich, 88 Ill. 558 ; Gavin v. Chicago, 97 Ill. 66; T., W. & W. R’y Co. v. Jones, 76 Ill. 311.
    The verdict of the jury was contrary to the weight of the evidence.
    Messrs. Duncan & O’Conor, for appellee.
    The evidence fully warrants the finding of the jury. They had before them, first, undisputed evidence of good health prior to the accident; second, a concurrence of evidence produced by both parties demonstrating beyond doubt that plaintiff’s health is irreparably ruined; third, the absence of any cause for his ill-health aside from his injury in the accident; fourth, the opinion of the plaintiff’s experts that his condition is due to shock received in the accident; fifth, the opinion of defendant’s experts that plaintiff’s condition is due to rheumatism of the heart, coupled with the admission that the rheumatism might have resulted from the shock.
    A defendant can not be permitted to allege in mitigation of damages that the injury was more aggravated by reason of the plaintiff’s previous unhealthy condition. Field on Damages, Sec. 613; Ehrgott v. Mayor, 96 N. Y. 264 (48 Am. R. 622); McNamara v. Village of Clintonville, 62 Wis. 207 (51 Am. R. 722).
    Eewly discovered evidence to warrant a court in granting a new trial, must be decisive in its character and not merely cumulative. Smith v. Shultz, 1 Scam. 490; Martin v. Ehrenfels, 24 Ill. 187 ; Calhoun v. O’Neil, 53 Ill. 537 ; T.,W. & W. R’y Co. v. Seitz, 53 Ill. 452 ; Hohnes v. Stateler, 57 Ill. 209; Fuller v. Little, 69 Ill. 229 ; Tallman v. Becker, 85 Ill. 183 ; T,, W. &W. R’y Co. v. Ingram, 85 Ill. 172.
    Newly discovered evidence, to warrant a new trial, must go to the issues tried by the jury and not merely to mitigate the damages. Schlencker v. Risley, 3 Scam. 486; Lafflin v. Herrington, 17 Ill. 399 ; Calhoun v. O’Neal, 53 Ill. 354; Crozier v. Cooper, 14 Ill. 139.
    Before a new trial will be granted on account of newly discovered evidence, it must appear that it could not have been discovered before the trial by the exercise of due diligence. Crozier v. Cooper, 14 Ill. 139 ; Lafflin v. Herrington, 17 Ill. 399 ; Wright v. Gould, 73 Ill. 56 ; Edgmon v. Ashelby, 76 Ill. 161; Champion v. Uhner, 70 Ill. 322; Bruce v. Truett, 4 Scam. 454.
   Welch, J.

On the 16th day of November, 1883, the appellee was a passenger on the train of the appellant from Ottawa to Streator. When near Streator a freight train of the appellant ran into the rear of the coach in which appellee was seated. Appellee avers in his declaration that the appellant by its servants negligently allowed said car in which the appellee was, to be run into and telescoped by another locomotive engine and cars operated by the appellant, by means whereof said car was wrecked, and the appellee with great force and violence was crushed, shocked, bruised, lamed, forcibly hurled forward in said car and jammed between the seats thereof, and in divers other ways abused and injured; by means whereof one of his legs was seriously crushed and bruised; one of his hips and his side above said hip permanently injured; one of his hands cut and disabled; his head cut and gashed, and he was otherwise greatly injured, bruised, hurt, wounded, lamed and disabled. The trial resulted in a verdict and judgment for the appellee for $5,000, from which this appeal is taken. Various errors are assigned. We shall examine the errors .in the order in which they are presented in appellant’s brief.

There is a fatal variance between the declaration and testimony.” It is claimed by counsel for appellant that under the allegation that he “ was crushed, shocked, bruised, lamed and in divers other ways abused and injured, by means whereof -x- •» -x- be became and was sick, lame and disordered and so remained for a long time, to wit, hitherto. No proof of the breaking down of the nervous system of the appellee, or proof that his nerve trouble might result in his death was competent,” and we are referred to Ayers v. Chicago, 111 Ill. 411; C., B. & Q. R. R. Co. v.Wilcox, 12 Ill. App. 47. The variance in the cases supra consisted in a difference between the statements of the declaration and the proofs as to how the injury occurred. In other words, as to the mode of its inflation and not as to its extent or character. In the case of the Eagle Packet Co. v. Defuis, 94 Ill. 603, Justice Dickey said s It is insisted that, as the declaration did not allege plaintiff’ had suffered a permanent injury, it was error to give tlxo third' and seventh instructions, which authorize the jury to, award the plaintiff damages for such permanent injury as the evidence showed he had sustained. This position is untenable. The declaration expressly alleges that the plaintiff then and there became sick, lamed and disordered and so remained for a long time, to wit, hitherto, etc. The permanency of plaintiff’s inj ury was merely evidence to be considered by the jury in determining the severity of the plaintiff’s sickness, lameness, and disorder, and the rules of pleading do not require the plaintiff to set forth in his declaration the evidence upon which he relies.” The position taken by the counsel for appellant as to what evidence was competent under this declaration and that there was a variance between the allegata et probata, is not well taken. Under the authority in 94 Ill. 603 supra, evidence of the breaking down of appellee’s nervous system and that it might result in his death was competent.

It is next insisted by counsel for appellant, “ that the verdict of the jury was contrary to the weight of the evidence.” It was admitted on the trial that the injury was occasioned through the negligence of appellant. It being conceded that the injury to the appellee was the result of the negligence of appellant, the only 'question involved is, as to the extent to which the appellee suffered injury from the acts of appellant. In order to accurately determine the scope and extent of the injury, we must consider the physical condition of appellee at the time of and prior to the injury, his. physical condition since, and to what extent is' his present condition attributable to the injury. The evidence shows that he was a healthy, ■ stout, active and sturdy farm hand at the time of the injury; was between twenty-seven and twenty-eight years of age-His condition .after' the injury as-described by himself was : “ After I got out through the window I was cut, bleeding and bruised. I was cut on the head, back of the ear and on the hand; and bruised on the head, knee and side. * * * When I got home that evening I was in a bad condition, and the next morning I was in a worse condition. * * * My head and side were very sore and painful, especially my right side. * * * From that time on the pain has continued ever since. * * * Since the injury my health is and has been very poor. I am not able and have not been able since . the injury to perform any manual labor; since then my ability to sleep is poor, very flighty, very restless ; and my appetite since then is very poor.” He was sustained as to his physical inability to do labor, etc., by Miller, Lawless, Forristol, Sohener and Sullivan. To what extent is his present condition attributable to the injury? The evidence on this question is conflicting. The evidence for the appellee tended to show that his present condition is attributable to the injury. Dr. Dyer testifies: “ I have been a physician for thirty years; three years an army surgeon and three years pension examiner. Have had special experience in nervous diseases and nerve injuries resulting from shocks and bruises. fSTever saw appellee until yesterday. I analyzed his urine this .morning. The condition of his urine showed evidences of injury to his spine very markedly present. I found his pulse a little while ago beating at the rate of 131 per minute. The normal condition of the pulse is from sixty to eighty. The pulse at the rate I found it indicates a very bad condition. * * * When the nerves that supply the heart do not stimulate it to action, the consequence is we have a very rapid, quick action of the heart. I have observed the color of his-face. It is the result of the rapid action of the heart. * * * Appellee is a totally disabled man. It is impossible for a man with a pulse at 130 to do manual labor. * * * It leads to other organic disturbances and breaking down of the system. In the ordinary course the results will be disastrous to him.” His opinion as an expert was, that the present condition of the appellee was attributable to the injury received at the tipie, of .the accident.

Dr. Hathaway testifies: “Have been a physician and surgeon in Ottawa since 1856. Have had experience in' examining patients suffering from effects of shocks. Did not know plaintiff before the accident. In the winter of 1883 and 1884, or spring of 1884, I met him at my offie.e in Ottawa. Have made four or five examinations of him in my office; and perhaps six or eight casual examinations outside of the regular examinations. Upon each and all of these times I examined his heart’s action as indicated by his pulse. Have made such tests by pulsation and auscultation. When I first examined him I found in the right iliac region on a line running from the navel to the anterior superior spinous process, a swelling; a line so run would bisect the region of the swelling. I then, at such first examination, found the pulse ranging from 115 and 120, and the heart’s action weak" and rapid. The swelling was from three to four inches in diameter. I undressed and laid him on a bed. While lying down his pulse beat 115, and sitting up 120. I saw him a couple of months afterward and found him in same condition and the swelling the same. In a couple of months ,1 examined him again in my office, and my last examination in my office was about two months ago. Normal condition of pulse is from sixty to eighty. His heart’s action is enfeebled and indicates, sickness of the nervous system and leads to inability to .work; may produce disordered digestion, or disordered condition of the. liver or kidneys, or organic or functional diseases of any of the organs, brain as well as otherwise. He is not capable of either mental or physical exercise to any considerable extent. Generally speaking the outlook would be that, it would be very questionable whether he - would ever recover. In the ordinary course of things the outcome would be unfavorable. The color of his face is not normal; it is produced by the rapid action of the heart. Was present at the analysis of his urine this morning, which showed a nerve trouble. The heart’s rapid action breaks down the nerve tissues and produces the undue amount of phosphate deposit in the urine which was found.” His opinion was that his present condition was attributable to the injury, received at the time of the accident.

Dr. Wood testifies for the appellant that the appellee could not be in a state of nervous prostration, and be as well nourished as he was. * * * He would fall away for want of nourishment. Dr. Hard testifies for the appellant that he had examined the appellee and found him well nourished; his muscles were well developed and the feeling very hard and very natural; he was fully nourished. He examined the appellee’s heart and gave his opinion that his affection was chronic rheumatism of the heart or pericardium. * * “ If appellee had been suffering from nervous prostration for two years he would now be a physical wreck. * * * I think a shock to the nervous system could not keep up a high rate of pulse for any constant period without some serious results; could not be kept up for a period of a year.” Dr- Weis and Dr. McArthur corroborate Dr. Hard. Dr. McArthur testifies further, “ Plaintiff’s condition is far from being healthy. A young man of the age of twenty-seven years, fully developed, robust and sturdy, never having been sick, with perfect constitution, if he were affected with a nervous complaint, would be able to hold out against it much longer than a weaker or less sturdy subject. I should judge, having seen his body bare, that he now weighs 160 pounds, and if he weighed 185 pounds in 1883, he has wasted twenty-five pounds in the past two years.” ■ This was the evidence as to his present condition and the cause of it. The jury by their verdict found that his present condition was attributable to the injuries received in the accident. And as said by Justice Walker in Bishop v. Buesee et al., 69 Ill. 403, the jury under the law have the exclusive right to pass upon and determine the weight of; evidence, and to find the facts. * * * In all such cases the presumption is that the jury have done their duty and found correctly ; that the Judge trying the case and being in a position to determine accurately whether the finding is right, and acting under the responsibility of his place, has determined correctly in overruling the motion for a new trial. These presumptions being in favor of the finding, we always feel a reluctance in interfering; nor can we adopt a rule that mere numbers of witnesses should determine the question. * ' *' * The jury judge of the manner and appearance of witnesses on the stand, their surroundings, their interest, their prejudice and feelings manifested in the case, none of which do we see. We must therefore leave the question of credibility and the worth of evidence where the law has placed it, with the jury.” C., B. & Q. R. R. Co. v Lee, Adin’x, 87 Ill. 457.

3. It is further insisted by counsel for appellant that the damages are excessive. In view of what we have said, if his present condition is attributable to his injuries, which the jury by their verdict have found, we can hot say that the damages are excessive.

It is further insisted that the court erred in not granting a new trial on the ground of newly discovered evidence. The newly discovered evidence to warrant- a court in granting a new trial must be decisive in its character, and not merely cumulative. Smith v. Shultz, 1 Scam. 490; Morrison v. Stewart, 24 Ill. 24 ; T., W. & W. R. R. Co. v. Seitz, 53 Ill. 452; Laird v. Warren, 92 Ill. 204; McCollom v. Indianapolis & St. Louis R. R. Co., 94 Ill. 534; Abrahms v. Weiller, 87 Ill. 179; Schoenfeld v. Brown, 78 Ill. 487; McKenzie v. Remington, 79 Ill. 388. There must also have been due diligence to procure and inability to obtain the newly discovered evidence of this decisive character. Wood v. Echternach,. 65 Ill. 149; Crozier v. Cooper, 14 Ill. 14l; Wright v. Gould, 73 Ill. 56 ; Edgmon v. Ashelby, 76 Ill. 161. Applying the rules laid down in the cases sufra, to the newly discovered evidence in'this case, we find that it is wholly insufficient to justify the granting a new trial. It is purely cumulative, tending simply to show that the appellee’s" ill-health might'be'attributed in part to nocturnal emission produced by self-abuse. It was not decisive in its character. It only goes to the measure of damages, and is not conclusive as to the amount. We hold' that by the exercise of due diligence it might have been dis-" covered. We adopt in this case the language used by Justice Walker in 69 Ill. supra: “We decline to disturb the finding in this case ; the verdict does not appear to us clearly and palpably against the evidence.”

We find no error in the ruling of the court in'the' admission of evidence, or in the instructions given. Substantial justice has been done.

Judgment affirmed.


text:
    Board of Education v. Smith Hoag.

      Practice — Execution against School Directors — Motion for Neto Trial— Sec. 56, Practice Act — Motion to set Aside Judgment — Discretion.
    1. It is error to award general execution upon a judgment against, a Board of School Directors. Such judgment can only be enforced as provided in ¶ 50, Chap. 122, Starr & C. Ill. Stat.
    2. Under Sec. 56 of the Practice Act the trial court must entertain á motion for a new trial when it is duly presented in writing during the term at which judgment is entered.
    3. When the defendant was not represented at the trial, a motion to set aside the judgment is addressed to the discretion of the court.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac W. Wilson, Judge, presiding.
    Messrs. Edward C. Lovell and Frank Crosby, for appellant.

      Motion for new trial should be at trial term. Campbell v. Conover, 26 Ill. 64.
    When motion in writing for a new trial, specifying grounds) is duly made, stay of final judgment until the motion can be heard is absolute. Hearson v. Graudine, 87 Ill. 115.
    A motion for a new trial may be filed during the term at which final judgment is entered. . O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104.
    A motion for a new trial is in time if made at the term at which final judgment is entered. C. & N. W. R. R. Co. v. Dimick, 96 Ill. 42.
    The effect of a motion for a new trial is to stay final judgment until such motion is overruled. People v. Cary, 105 Ill. 264.
    Mr. R. N. Botsford, for appellee.
    The court rightfully refused to set aside the judgment. Union Hide and Leather Company v. Woodley, 75 Ill. 435; Treutler v. Halligan, 86 Ill. 39; Palmer v. Harris, 98 Ill. 507.
    Until the judgment was set aside or vacated, the appellant was in no condition to take any further steps in the case. The vacation of the judgment would not set aside the verdict upon which the judgment is based. Edwards v. Irons, 73 Ill. 583.
    Eo motion was in fact made for a new trial. The nearest approach to it was the motion for leave to file such a motion.
    Eo motion was entered upon the record for a new trial nor was the court asked to enter such a motion. The filing of such a motion, if in proper order of. time, is a matter of right; no leave of court to file it was necessary and it seems counsel so regarded it, as upon the written motion it bears the file mark of the clerk of December 2, 1885, the day leave was asked to file it. In all cases cited by appellant in support of this alleged error of the court below, except the case of People v. Gary, 105 Ill. 264, the motion for a new trial was made before the final judgment was entered, and in that case the motion for a new trial was coupled with a motion to vacate the judgment.
   Welch, J.

This was an action of assumpsit brought by the appellee against the appellant. General issue filed.

On the 27th day of October, 1885, this cause came on for trial, a jury was called and verdict rendered for appellee on which verdict judgment was entered by the court. There was no one present at the trial representing the appellant. On the first day of December appellant appeared and moved the court to set aside the judgment, which was denied. Motion by appellant to set aside judgment for the purpose of entering motion for new trial. Motion overruled. Motion by appellant for leave to file motion for new trial. Motion denied. To each of the said rulings of the court the appellant at the time excepted. Motion for new trial and reasons therefor filed December 2, 1885. This motion was filed during the October term at which judgment was rendered.

The first error assigned is, that the court refused to vacate the judgment so entered and let the appellant in with its defense. On the ground this motion was based it was one addressed to the discretion of the court, and we can not say there was any abuse of that discretion. The judgment should have been vacated or modified for another reason as it awarded execution against the appellant. Botkin v. Osborne, 39 Ill. 101.

The second error assigned is that the court refused to entertain a motion for a new trial which was presented in open court in writing on one of the days of the term at which the judgment was entered and bearing the file mark of the clerk of the court. Under Sec. 56 of the Practice Act, it is provided: “ If either party may wish to except to the verdict or for other causes to move for a new trial he shall before final judgment be entered or during the term it is entered by himself or counsel, file the points in writing particularly specifying the grounds of such motion, and final judgment shall thereupon be stayed until such motion can be heard by the court.” In this case judgment was entered immediately upon the rendition of the verdict. This motion was presented during the term at which the judgment was entered. It was in writing, particularly specifying the grounds of the motion and it was filed with the clerk. The appellant did all that it was required to do under the statute, supra. Its right to file a motion for a new trial was a right conferred by law. A right which the court had no discretion in regard to or right to re. fuse. Appellant had the right to make the motion and having filed the same with the clerk in apt time it was the duty of the court to have entered, heard and disposed of the motion for a new trial. It was error to refuse it. For the errors . herein indicated the judgment is reversed and cause remanded with directions to enter, hear and dispose of the motion for a new trial, appellee to pay the costs in this court.

Reversed cmd remanded.


text:
    Herman Classen v. John Cuddigan.

      Credibility of Witnesses — Question for the Jury -Newly Discovered Evidence.

    1. Where the question involved depends on the credibility of the witnesses, this court will not interfere with the finding of the jury.
    2. Newly discovered evidence which is merely cumulative is insufficient as ground for a new trial.
    [Opinion filed December 11, 1886.]
    Appeal from the County Court of Iroquois County; the Hon. S. G. Bovie, Judge, presiding.
    Messrs. Charles Payson and Doyle, Morris & Pierson, for appellant.
    Messrs. Kay & Ehans, for appellee.
   Welch, J.

This was a suit brought by appellant against the appellee before a Justice of the Peace on a distress warrant. There was a trial before the Justice and judgment for appellant and an appeal wras taken to the County Court where there was another trial, verdict and judgment for the appellee, from which this, appeal is taken. The appellee had rented from the appellant some eighty acres of land to put in corn for which he was to give as rent one-tliird of the corn raised. He only delivered about 343 bushels of corn. The evidence as to the amount of corn that was raised was conflicting; the evidence on the part of appellant tended to show that the land would have, averaged about twenty bushels' of corn per acre, of which one-third would have amounted to 190 bushels more than was delivered by the appellee to him, and that corn was worth 30 cents per bushel. The appellee and his witnesses testified that the ground was very wet and would not average near twenty bushels per acre, and the appellee and his two sons testify that they delivered all of the one-third of the corn raised. The question of the credibility of the witnesses was one specially for the jury. They having found for the appellee we arc not disposed to interfere with the finding. • •

It is further insisted by counsel for appellant that the court erred in not granting a new trial on the ground of newly discovered evidence. Tlie newly discovered evidence was merely cumulative and impeaching, and as uniformly held by the ■ Supreme Court a new trial will not be granted when the , newly discovered evidence is merely cumulative. Skelley v. Boland, 78 Ill. 438; Clayes v. White, 83 Ill. 540; City of Elgin v. Rennick, 86 Ill. 498; Harvey v. Collins, 89 Ill. 255. There was no error in refusing a new trial.

Judgment affirmed.