text:
    Edwin Walker v. The Bank of North America.
    Practice—Suit on appeal bond—Amending pleas—Terms mat be imposed.—Suit was brought on a bond for appeal to the Supreme Court. The bond contained the usual conditions for payment of the debt on affirmance of the judgment appealedfrom. The judgment was reversed in Supreme Court, but on a re-hearing was affirmed. To the suit on the bond, defendant plead nil debit to which a demurrer was sustained. Leave was granted defendant to file amended pleas, on condition that he prepare his amended pleas with affidavit showing a meritorious defense, and submit them to the court. Defendant then filed a plea that the judgment had been reversed, with affidavit that the plea was true. This plea was had in that it did not traverse the allegation of plaintiff that the judgment had been affirmed, and it was not error for the court to refuse to allow such plea to he filed.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Walker & Carter, for appellant;
    that the court had no right to impose terms upon the filing of amended pleas, cited Empire Fire Ins. Co. v. Real Estate Trust Co. 1 Bradwell, 391; Misch v. McAlpine, 78 Ill. 507.
    Upon the construction to be given to appeal bonds: Karthaus v. Owings, 6 Har. & J. 134.
    That the plea offered was sufficient: 1 Chitty’s Pl. 785; Dewey v. Brown, 5 Pick. 238; Bond v. Cutter, 10 Mass. 419; Spencer v. Southwick, 9 Johns. 316; Coffee v. Lawrence et al. 2 Denio, 195; Currie v. Whitney, 2 Johns. 433; Fisher v. Ellis, 6 Greenleaf, 455; Jackson v. Rundlet, 1 Wood. & M. 381; Withers v. Greene, 9 How. 231; United States v. Bradley, 10 Pet. 343; Pendleton Co. v. Avery, 13 Wall. 297; McAllister v. Ely, 18 Ill. 250; Miller v. Blow, 68 Ill. 304; Cottrill v. Cramer et al. 40 Wis. 559.
    Messrs. McCagg, Culver & Butler, for appellee;
    that o%il debit was not a proper plea, cited Davis v. Burton et al. 3 Scam. 41; King v. Ramsay, 13 Ill. 619; Caldwell et al. v. Richmond, 64 Ill. 30.
    That the right to plead de novo rests in the discretion of the court: Rich v. Hathaway, 18 Ill. 548; Clemson v. State Bank, 1 Scam. 45; Conradi et al. v. Evans et al. 2 Scam. 185; R. R. I. & St. L. R. R. Co. v. Wilcox, 66 Ill. 417; Mellish v. Richardson, 9 Bing. 126.
    The court may require defendant to show that he has a meritorious defense, as terms upon allowing him to amend his pleas: White v. N. W. Stage Co. 5 Oreg. 99; Bailey v. Williams, 6 Oreg. 71; McKichan v. Follett, 87 Ill. 103; Schroer v. Wessell, 11 Chicago Legal News, 46; Freeman on Judgments, § 541; Hilliard on New Trials, 718; Moir et al. v. Hopkins et al. 21 Ill. 557.
    If the pleas do not disclose a good defense, the court may refuse leave to file them: McCord v. Crooker, 83 Ill. 556; Allen et al. v. Watt, 69 Ill. 655.
    A plea in confession and avoidance must give color: Stephens on Pl. 207; 1 Chitty’s Pl. 525.
    All traversable allegations not controverted by the pleas are considered as confessed: Simmons v. Jenkins, 76 Ill. 479; Dana v. Bryant et al. 1 Gilm. 104; The People v. Gray, 72 Ill. 343.
    Every intendment is taken most strongly against the pleader: Evans v. School Com’rs, 1 Gilm. 654; Vining v. Leman, 45 Ill. 246; Claycomb v. Munger, 51 Ill. 373; Leman v. Stevenson, 36 Ill. 49.
   Murphy, P. J.

The question presented' is a question of practice. It appears that Mr. Walker, representing a certain railroad company as its attorney, which was sued and judgment obtained against it, an appeal being prayed to the Supreme Court, signed the appeal bond as surety. This appeal bond contained the usual conditions required by the statute, that is to say, in substance, that if the judgment should be affirmed by the Supreme Court, he was to pay the debt.

It seems that- upon the appeal being taken to the Supreme Court, the judgment was reversed, and a mandate to that effect was sent back to the court here, where it was tried; subsequently, upon re-hearing, a change of view was effected in the Supreme Court, and the judgment was affirmed, and that was the final decision and judgment of that court.

Suit was brought upon this appeal bond, the plaintiff alleging the affirmance by the Supreme Court of the judgment of the court below; the defendant pleaded nil debit; to that plea a demurrer was sustained; he then applied to the court for leave to file amended pleas; the court granted him that leave upon certain conditions, viz.: that he should prepare his amended or additional pleas and submit them to the court with an affidavit, from which the court might see that he did really have a meritorious defense. The case decided in this court at the last term: Empire Fire Ins. Co. v. Real Estate Trust Co., 1 Bradwell, 391; as also tire case decided in the 78th Ill., Misch v. McAlpine, 78 Ill. 507, have been relied upon by the appellant in support of his rights in this case; we have considered them carefully, and .think the case at bar differs from and is not within the purview of those decisions.

At the time at which he had leave to file these amended pleas, together with the affidavit, the appellant presented a plea that the Supreme Court had reversed the case, and filed his affidavit that the plea was true; the plea was not good in this, that it did not traverse the allegation that the judgment had been affirmed by the Supreme Court; that was the gravamen of the plaintiff’s declaration.

He simply presents the allegation in his plea that the Supreme Court had reversed the case, non constat; that it had also affirmed it, as was the fact; the plea, therefore, was defective, and not responsive to the plaintiff’s declaration in the matter of a material allegation. The court may well have said to him: “There is no object in allowing you to file this plea; a demurrer would be instantly sustained to it.”

Defendant was not, therefore, allowed to plead anew; the plea offered was not accepted.

That is about the case, as it appears upon the record.

And upon that state of facts we think the court decided correctly. We think it fails to come within the ruling of this court in the case decided at the last term, where the facts were that immediately upon the plaintiff’s demurrer being sustained, the counsel for defendant was present with good pleas, ready to file them instan ter; the court refused leave to file them; we decided that to he error, and we think now that it was error, but that is not the case now before us. After having asked the indulgence of the court for several days, to prepare and present pleas with his affidavit, the appellant comes into court and presents a bad plea—confessedly, manifestly bad, at first-sight. .

And, therefore, we think the analogy between the cases can scarcely be perceived by the most astute observer.

Defendant’s plea being bad, it was simply trifling with the court to ask it to permit it to be filed; the plaintiff could again demur and repeat that" sort of folly indefinitely. That is not the spirit in which justice is administered; it lacks that gravity necessary to the fair administration of justice by the court.

The Superior Court we think decided correctly in refusing the filing of the bad pleas. In the light of these facts, the judgment of the court below is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    The Lake Shore & Michigan Southern Railway Co. v. Isaac T. Sunderland, Adm’r, etc.
    1. Injury from passing train—Contributory negligence.—Where one knows a railway train to be approaching, which may injure him if he attempts to cross the track before it, the slightest care for his own safety requires him to wait for it to pass. So, where it appears that the deceased was acquainted with the way in which the trains were run, and saw or might have seen the whole situation precisely as it was, but in her eagerness to secure a passage on the train, attempted to cross the track and was struck, there was gross neg-ligence on her part. In such case the absence of the flagman from his post, or the failure to give warning of the approaching train by bell or whistle, is not such willful or wanton negligence on the part of the railroad company as to charge it with responsibility for the accident.
    2. Measure op damages.—If the company were liable at all, it would he only for the actual pecuniary damage suffered by the next of kin in the death of the person injured.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Mr. C. D. Boys, for appellant;
    that there was no proof of notice to the company to station a flagman at the crossing, as provided in the' ordinance, and until such notice no obligation rests upon the company to do so, cited Ballance v. Underhill, 3 Scam. 453; Todemier v. Aspinwall et al. 43 Ill. 401; Evans v. v. Browne, 30 Ind. 514; Parent v. Walmsley’s Adm’r, 20 Ind. 82.
    Deceased was guilty of such gross negligence as to bar a recovery: Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. S. & M. S. Ry. Co. v. Hart, 1 Chicago Law Jour. 301; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; Ill. Cent. R. R. Co. v. Hall, 72 Ill. 222; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; L. S. & M. S. Ry. Co. v. Miller, 25 Mich. 274; Wharton on Negligence, § 384.
    The running of the train at a rate of speed prohibited by the ordinance does not raise a presumption that the injury was willful or wanton: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Artz v. C. R. I. & P. R. R. Co. 34 Iowa, 153; R. R. Co. v. Hunton, 33 Ind. 335; R. R. Co. v. Houston, 5 Otto, 697.
    To warrant a recovery, the party injured must have exercised ordinary care, or the injury must have been wantonly inflicted: Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; R. R. Co. v. Houston, 5 Otto, 697; Ill. Cent. R. R. Co. v. Green, 81 Ill. 19; C. & A. R. R. Co. v. Becker, 76 Ill. 25; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; Wharton on Negligence, § 300.
    An instruction on the part of the defendant, that as a matter of law the plaintiff cannot recover, supersedes the ancient practice of demurrer to the evidence, and should be tested by the same rules: Improvement Co. v. Munson, 14 Wall. 448; Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359; L. S. & M. S. Ry. Co. v. Miller, 25 Mich. 274; Artz v. C. R. I. & P. R. R. Co. 34 Iowa, 153; R. R. Co. v. Houston, 5 Otto, 697; Wilson v. Hudson R. R. R. Co. 24 N.Y. 430; Pleasant v. Fant, 22 Wall. 116; G. & C. U. R. R. Co. v. Loomis, 13 Ill. 548; Amos v. Linnott, 4 Scam. 440; C. B. & Q. R. R. Co. v. Hazzard, 26 Ill. 373; Tefft v. Asbaugh, 13 Ill. 602.
    Where the evidence clearly fails to make out the plaintiff’s case, it is error to refuse such an instruction: G. T. R. R. Co. v. Nichol, 18 Mich. 170; Davis v. Detroit & Mil. R. R. Co. 20 Mich. 105; Bevans v. United States, 13 Wall. 56; Ins. Co. v. Baring, 20 Wall. 159; Greenleaf v. Birth, 9 Pet. 292; Hendrick v. Lindsay, 3 Otto, 143.
    Upon the measure of damages: Ill. Cent. R. R. Co. v. Baches, 55 Ill. 379; C. & R. I. R. R. Co. v. Morris, 26 Ill. 400; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Board of Trustees v. Misenheimer, 78 Ill. 22.
    Instructions should be based on the evidence: C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C. & A. R. R. Co. v. Shannon, 43 Ill. 338.
    Declarations of the deceased in regard to the accident were properly admitted: 1 Greenleaf’s Ev. § 147; Nichols v. Webb, 8 Wheat. 326; Wharton on Ev. § 226; Jewell’s Lessee, 1 How. 219; Bird v. Hueston, 10 Ohio St. 418; Gale v. Girver, 24 Me. 563; Nash v. Gibson, 16 Iowa, 305; Brush v. Blanchard, 19 Ill. 30.
    Mr. Bobert Hervey, for appellee;
    cited St. L. V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197.
   Pleasants, J.

On the 10th day of April, 1875, Mary Day, the decedent, was struck by a locomotive attached to appellant’s train, at the crossing of its track on the north side of 63d Street in the village of Englewood, and died from the effect on the 26th day of August following.

The declaration in the first count alleged negligence in its management by the company’s agents, generally; in the second, specifically, in the violation of an ordinance of the town of Lake, in two particulars, viz. : in running at a rate of speed exceeding ten miles per hour, and in failing to have a flagman stationed at the crossing; and evidence was introduced tending to prove also the omission of all warning, by bell or whistle, of its approach. 1

It was admitted that there was no flagman at the crossing. In respect to the other particulars the testimony on the part of the plaintiff was strongly contradicted. Conceding, however, that it was sufficient to support a finding'against the company, and thus to make a case of gross negligence (Chicago & Alton R. R. Co. v. Gregory, 58 Ill. 226; Same v. Becker, 84 Id. 485), yet inasmuch as it was not claimed to have been wanton or willful the question of its liability in this action would still remain, to be determined by the conduct of the deceased. If she also was guilty of negligence in the same or nearly the same degree it is settled that no recovery can be had. Ill. Cent. R. R. Co. v. Hammer, 85 Ill. 528; Same v. Hetherington, 83 Id. 510; Same v. Hall, 72 Id. 224; C. B. & Q. R. R. Co. v. Lee, 68 Id. 576.

She was in the seventeenth year of her age, a pupil of the Hormal School, of unimpaired health and faculties, and above the average in attainments and intelligence. Besiding with the family of appellee, on 63d Street, four blocks east of the crossing, which she daily passed and repassed on her way to school and back, she was familiar with the locality and with the running of the trains. The one in question was coming north, due at Englewood Station—some six or seven hundred feet north of the crossing—at 1.40 p. m., and about on time. It could be seen for two miles or more from the place of her residence, or any point between that and the station. Deceased did see it—precisely where, at first, does not appear—but several blocks away, at least. Having occasion to go to the city that afternoon she was intending to take it, but fearing she might be too late her purpose was to reach and pass the crossing first, so that the conductor, whose place would be on the further or platform side, might see her as he passed and hold it at the station until she could come up. Of her ability to accomplish it she was evidently in doubt as well as in hope; for she ran to do it, and persisted in the race after her companion had given it over.

On a side track east of the main one were some box cars, extending south from a point near the south line of the street for the distance of a block or thereabouts. These would hide from her sight the body of the coming train during the short time they intervened; but the roar of its coming was easily heard, the tracks were depressed below the general surface so that the smoke stack of the engine was all the time visible, and the train itself was again in full view before she reached the side-track. She must then have known, from what she had before observed even if she did not at the moment see, that it was dangerously near, and yet it is probable that, looking only straight along her own path lest she should stumble upon the tracks she was to pass, she did not particularly note its distance or its speed. It was enough that she saw it had not reached the crossing, and being herself so near she still pressed on. When struck she had so far crossed that she fell quite outside and west of the track.

The foregoing statement condenses the testimony of all the witnesses who observed the occurrence, and the account which deceased herself gave of it to the surgeons in attendance upon her, and to others, is in entire harmony. Thus, according to Dr. Lovewell: “ She said that she was endeavoring to make that train. It was on Saturday. She was going to the city. That was the last train in, as I believe, until along in the afternoon. She saw the train coming some little distance before it reached 63d street, and she was afraid she would not be in time reach it or the depot; so she ran to get upon the outer side of it that she might see the conductor, and didn’t get quite far enough so but that the engine struck her.” Dr. Bosworth’s version is: “ She said that she saw the train coming and she was running to get it, and to get on the outer side so as to see the conductor; that if she saw him he would wait for her at the depot; that she didn’t succeed in getting the crossing, and was hit by the engine.” Both of these gentlemen say that her conversations with them about it were frequent, consistent, and in substance as above set forth. Mrs. Hyde also testifies to the same statement, and there is nothing in the evidence to contradict or vary it.

From this it appears that deceased did not, and we think we canpot, attribute the accident to the intervention of the boxcars, the absence of a flagman, the failure of warning, or ignorance on her part of any fact needful for her to know. She saw or might have seen the whole situation precisely as it was, and cannot be excused for the indulgence of a presumption or supposition palpably contrary to it. In this respect the case differs materially from that of- the St. L., Vandalia & Terre Haute R. R. Co. v. Dunn, 78 Ill. 197, on which alone the appellee relies for an affirmance of the judgment. The Supreme Court affirmed that, which was on the fifth trial, with a labored argument upon the circumstances—some undisputed, and others assumed as strongly for the deceased or against the company as the jury might have found them. They observe that the character of the crossing was recognized as extraordinarily dangerous, by the appointment of a flagman for it and the erection there of a house for him, and yet he was not at his post; that the bell was not rung nor the whistle blown; that it was at night, and all that the deceased could see, if he looked, was the head-light; that seeing this, but hearing no bell or whistle, he might not know that the tfain was in motion; that if he did, under all these circumstances he might presume, without great blame# that it was within the limit, as to speed, prescribed bylaw, and that upon that presumption there was no risk in his attempt to cross. If he was guilty of any negligence, that of the company, in disregarding all the requirements of the law at such' a place and time, was so much greater as justly to charge it with responsibility for the consequences.

The time and place, and consequently the situation and conduct—the comparative negligence—of the parties respectively in the case at bar, seem to us to .have been very different.

Ordinarily the person so injured or killed has gone upon the track in "ignorance of the actual nearness of the train. If due to his failure to look, it has been deemed gross negligence" and so far the cause of the injury as to prevent any recovery for it, upon the assumption that if he had seen it he would have avoided the injury by waiting without attempting to cross until it had passed. C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; Same v. Lee, 68 Id. 576; I. C. R. R. Co. v. Godfrey, 71 Id. 500; Same v. Hall, 72 Id. 224; C. B. & Q. R. R. Co. v. Damerell, 81 Id. 450, and numerous cases cited on p. 455; I. C. R. R. Co. v. Hetherington, 83 Id. 515; C. & A. R. R. Co. v. Becker, 84 Id. 485; C. R. I. & P. R. R Co. v. Bell, 70 Id. 106; L. S. & M. S. R’y Co. v. Miller, 25 Mich. 274.

This involves the proposition that when one knows a train to be approaching which may injure him if he attempts to cross the track before it, the slightest care for his own safety requires him to wait for it to pass. In this case the deceased actually saw it, and the event proved that it was too near for her utmost speed to escape. If she had barely succeeded, who that .witnessed it could have refrained, while shuddering at the danger she had passed, from exclaiming upon her rashness ? Would not her own father have upbraided her? The fact that she failed certainly does not lessen the rashness of the attempt, and while the sadness of her fate forbids all upbraiding, it is not to color the judicial view of her act. We think the law adjudges it gross negligence, and that for the unhappy result to which it so largely contributed no recovery can be had. C. B. & Q. R. R. Co., v. Lee; I. C. R. R. Co. v. Hetherington, and other cases supra.

The verdict for the appellee, plaintiff below, was for two thousand dollars. If the defendant was liable at all it would be only for the actual pecuniary damage suffered by the next of kin in the death of the deceased. C. & R.-I. R. R. Co. v. Morris, 26 Ill. 400; C. & N. W. R. R. Co. v. Swett, 45 Id. 197; I. C. R. R. Co. v. Baches, 55 Id. 389; C. & A. R. R. Co. v. Becker, 84 Id. 486.

She left, as next of kin, her parents and an older sister; was within eighteen months of her legal majority, and fitting herself for the profession of a teacher at the expense of her father, who resided in the State of Missouri. These are all the facts appearing in the record which are supposed to bear upon the question of damages; and they hardly furnish a substantial basis for the amount found by the jury, or indeed for any other than a nominal amount.

The above views dispose of all the questions raised in the case. The verdict was against the law applicable to the facts clearly proved, and therefore ought to have been set aside. The judgment thereon must be reversed and the cause remanded.

Reversed and remanded.


author: Murphy, P. J.

text:
    Horatio Pratt v. Theodore H. Bryant.
    1. Practice—Appeal prom a justice—Summons to Appellee.—Where, on appeal from a justice of the peace, the bond for appeal is filed with the clerk of the appellate court, and approved by him, summons should be issued to appellee and returned, as required by statute, or his written appearance must be entered therein, before the appellate court can acquire jurisdiction of the cause.
    2. Erroneous dismissal op appeal.—There having been no service upon the appellee, nor a return of two minis, nor an appearance entered by the appellee in the manner authorized by statute, the court to which the appeal was taken had no jurisdiction to make any order in the case, and it was error to dismiss the appeal on the call of the docket, or to do any act other than to continue the case until the court acquired jurisdiction.
    Error to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.
    Mr. F. A. Riddle, for appellant.
   Murphy, P. J.

It appears that on the 5th day of April, A. D. 1876, the defendant in error recovered a judgment against the plaintiff in error for the sum of thirty-five dollars and costs, before D. II. Horne, a justice of the peace in Cook county, from which judgment he prayed an appeal to the Circuit Court of said county. It also appears that on the 25th day of the same month, he, the plaintiff in error, perfected said appeal by entering into an appeal bond before the clerk of that court, and having the same approved by said clerk, as required by the statute in such cases. It appears that no steps were thereafter taken by either plaintiff or defendant, to cause to be filed in that court the transcript of the justice’s docket, and the files pertaining to said case remaining in his hands; nor was any summons sued out of the Circuit Court, directed to the appellee, as required by the statute; but the cause appears to have been continued on the docket of the Circuit Court from term •to term, without any further steps being taken to prepare it for trial, until the 14th day of March, 1878, when on that day it was reached for trial in the regular call of the docket for final disposition. Mo one appearing for either side, the court on its own motion dismissed said appeal for want of prosecution, and ordered a procedendo to the court below.

This order dismissing said appeal is assigned for error.

By section 65, chapter 79, of the Bevised Statutes of 1874, it is provided that upon the filing and approval of the appeal bond the clerk shall issue * * * a summons to the appellee, to appear at the term of the court to which the appeal is returnable, which summons shall be served and returned as in other cases. By section 67 of the same chapter it is provided that when the appeal is taken by filing a bond with the clerk of the appellate court, and summons and alias summons have been duly issued against the appellee, and returned not found, it shall be lawful for the appellate court to proceed and try the appeal as if the appellee had been duly served with process. By section 68 it is provided that if the appeal is perfected by filing the papers and transcript of judgment, ten days before the commencement of the term of the court to which the appeal is taken, the appearance of the appellee m ay be entered in writing, and filed among the papers in the case, and if so entered ten (10) days before the first day of the term of court, the case shall stand for trial at that term.

The fact of service of summons on the appellee or the entry of 'his appearance, as provided by the statute, is a jurisdictional fact, and necessary to give the court jurisdiction of the appellee, and thus empower and authorize it to make an order dismissing the appeal. There having been no service on the appellee in this case, nor a return of two niMls, nor an appearance entered by the appellee ten days before the commencement of the term in the manner authorized by the statute, it was manifest error to dismiss the appeal or do any other act in the case than to continue it until the court acquired jurisdiction of the appellee in the manner prescribed by the law. Camp v. Hogan, 73 Ills. 228.

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

Judgment reversed.


author: Bailey, J.

text:
    Joseph Dinet v. Thomas Reilly, use, etc.
    1. Parties—Non-joinder.—Actions upon causes arising ex contractu must be brought in the names of the parties in whom, the legal interest in the contract is vested.
    2. Practice—When objection mat be raised.—The omission of proper parties as plaintiffs in actions upon contracts may be taken advantage of at the trial under the general issue, or on motion in arrest of judgment, or on error. If the non-joinder appears upon the face of the pleadings, it is fatal on demurrer. If there are legal grounds for omitting the name of a party—as his death—it is necessary to show such excuse for non-joinder in the declaration.
    3. Verdict against evidence—Express promise.—Appellee sought to recover for paving the street in front of appellant’s property, under a contract with the city council, in pursuance of an ordinance, and relied upon a promise by appellant to pay him therefor. His right to recover, then, must rest upon an express promise, there being nothing from which a promise may be implied. Appellee testified that appellant agreed to pay for the work done, which appellant positively denied. Held, that the verdict was against the preponderance of the evidence.
    Appeal from the Circuit Court of Cook county; the Hon. John G-. Bogbbs, Judge, presiding.
    Mr. Heney Binmobe, for appellant;
    as to the objection of non-joinder of parties, cited 1 Chitty’s Pl. 2: Manlove v. McHatton, 4 Scam. 96; Hunter v. Gilham Breese, 51; 1 Henry Blackstone, 81; 75 Tenn. R. 359; Brinkerhoff v. Wemple, 1 Wend. 470; Jessell v. Ins. Co. 3 Hill, 88; Boggs v. Ingraham, 3 Dall. 502; Anderson v. Martindale, 1 East. 497; Dawe v. Peck, 8 T. Rep. 332; Eccleston v. Chipsham, 1 Saund. 153; Thimblethorp v. Hardesty, 7 Mod. 116; Doe v. Staple, 2 T. Rep. 696; Baucrman v. Radenius, 7 T. Rep. 667; Anderson v. Clark, 2 Bing. 20; Place v. Delegal, 4 Bing. 426; Seaton v. Booth, 4 A. & E. 528; Poole v. Hill, 6 Mecs. & W. 835; Story v. Richardson, 6 Bing. 123; Dickinson v. Burr, 7 Ark. 34; Com’l Bank v. French, 21 Pick. 489; Allen v. Ayers, 3 Pick. 298; Warden v. Burnham, 8 Vt. 390; De Cordova v. Atchinson, 13 Tex. 372; Garland v. Reynolds, 20 Me. 45; Montague v. Smith, 13 Mass. 404; How v. How, 1 N. H. 261; Smith v. Emery, 7 Halst. 53; Wolfe v. Washburn, 6 Cow. 261; Barndollar v. Tate, 1 Serg. & Rawle, 160; Treat v. Stanton, 14 Conn. 445; Wheelwright v. Beers, 2 Hall, 391; Hall v. Huntoon, 17 Vt. 244; Lapham v. Green, 9 Vt. 407; Weathers v. Day, 4 Dana, 474; Halladay v. Doggett, 6 Pick. 359; Doe v. Halsey, 16 Johns. 34; Wilson v. Wallace, 8 Serg. & Rawle, 53; U. S. v. Kennan, 1 Pet. 168; Gould v. Gould, 6 Wend. 264; Wright v. Post, 3 Conn. 142; Hewes v. Bayley, 20 Pick. 96; Jellison v. La Fonta, 19 Pick. 204; Wright v. Williamson, 2 Penn. 978; Bridge v. Payson, 5 Sandf. 210; Page v. Walcott, 15 Gray, 536; Story on Partnership, § 241; Collyer on Partnership, § 649
    When the objection of non-joinder may be taken advantage of: Goodnight v. Goar, 30 Ind.418; Debolt v. Carter, 31 Ind. 355; Vernon v. Jeffreys, 2 Stra. 1146; Dodge v. Wilkinson, 3 Met. 292; Rhodes v. Dymock, 33 N. Y. 141; Cunningham v. White, 45 How. Pr. 486; Bell v. Layman, 1 Mour. 39; Bragg v. Wetzell, 5 Blackf. 95; Armim v. Spencer, 4 Wend. 406; Whiting v. Cook, 8 Allen, 63.
    Ih'it the burden of proof is upon the plaintiff, and as to a preponderance of evidence: Harris v. Miner, 28 Ill. 135; Piatt v. The People, 29 Ill. 54; C. & A. R. R. Co. v. Utley, 38 Ill. 410; Mitchell v. Deeds, 49 Ill. 416; Stevenson v. Marony, 29 Ill. 532; Watt v. Kirby, 15 Ill. 200; Dunton v. Chamberlain, 1 Bradwell, 391; McCarthy v. Mooney, 41 Ill. 300; Hubbard v. Rankin, 71 Ill. 129; Broughton v. Smart, 59 Ill. 440; Sturman v. Streamer, 70 Ill. 188; Meyer v. Mead, 83 Ill. 19; Paton v. Stewart, 78 Ill. 481; Gowen v. Kehoe, 71 Ill. 66; Haines v. The People, 82 Ill. 430; Angelo v. Faul, 85 Ill. 107; Huddle v. Martin, 54 Ill. 258; Crabtree v. Hagenbaugh, 25 Ill. 233; Yundt v. Hartrunft, 41 Ill. 9; Chittenden v. Evans, 41 Ill. 251.
   Bailey, J.

This was a suit in assumpsit, brought by apx lee to recover from appellant compensation for paving that pa, of Cornell street, in the city of Chicago, fronting upon a certain lot owned by appellant. The declaration contained only the usual common counts. Appellant pleaded the general issue, and on trial by a jury, in the court below, a verdict was rendered in favor of appellee for $273.10, for which amount and costs judgment was entered against appellant.

The evidence show's that on the sixth day of April, 1874, the city council of the city of Chicago passed an order directing the Board of Public Works, in all eases where the property-owners representing seven-eighths of the number of feet fronting on any street to be improved, requested it, to allow such work or improvement to be done by private contract. On the seventh day of June, 1875, the city council passed a further order, in which, after reciting that the owners of1 seven-eighths of the property fronting on Cornell street, between Milwaukee avenue and Ashland avenue, had made a contract with Thomas Reilly & Co. to grade and pave Cornell street in front of their property, and that said property owners were desirous of having their work done by private contract, it was ordered that said board should enter into a contract with said Thomas Reilly & Co., on the part of the city, for walling, paving and grading the intersections on said Cornell street, at a price not to exceed that to be paid by the property owners, and that said board should cause an assessment to be levied on the property of the property owners not signing said contract, and have the same collected without unnecessary delay, and pay the same over to said contractors.

It is not pretended that appellant was one of the signers of the contract mentioned in the order of June 7, 1875, and appellant, in his testimony, explicitly denies having signed it. It appears, however, that in pursuance of said contract, Thomas Reilly & Co., consisting of appellee and one Shaw, his co-partner, went on and paved said street. It was admitted, on the trial, that no assessment was ever made by said board, pursuant to said order. Appellee bases his right to recover in this suit solely upon a promise to pay, which he claims appellant made to him while the work was progressing.

The main question to be considered is, whether appellee should not have joined his co-partner with himself as co-plaintiff, and whether his failure so to do is not fatal to the present judgment.

Ho principle is more elementary than that suits upon matters arising ex contractu, must be brought in the names of the parties in whom the legal interest in the contract is vested. In this case, the right to compensation for paving the street in question, is clearly vested in appellee and his co-partner, jointly, and not in appellee alone. On this point the evidence can scarcely be said to be conflicting.

The only witness produced on the part of appellee, was himself, and although he. testifies that Tie did the paving in question for appellant, he nowhere, in terms, denies that his co-partner was jointly engaged and interested with him in the work. He admits, moreover, that the paving was done under and in pursuance of the written contract made with the owners of seven-eighths of the frontage on the street. This contract appears to have been lost, and so was not exhibited in evidence, but that it was a contract between the owners of seven-eighths of the property fronting on the street of the one part, and Thomas Reilly & Co. of the other, and not between said property owners and Thomas Reilly alone, is shown not only by the recitals of the order of the city council, of June 7, 1875, but also by the fact appearing in the testimony of appellant, that appellee, before commencing the work, came to him and sought to obtain his signature, and through his influence the signatures of his neighbors to a contract with appellee and his partner, Shaw, for paving the street; and also by the testimony of witness Jones, an employee of the city, having charge of the special assessments made by the Board of Public Works, to the effect that the street was in fact paved by Eeilly and Shaw, under said order of June 7, 1875.

It is true, appellee testifies that he presented a bill for this work to appellant, and that appellant promised to pay for it. The work, however, having been done by appellee’s firm, it will be presumed, at least until the contrary appears, that such bill was rendered in the firm name, and the promise to pay, although made to appellee individually, will, in the absence of countervailing testimony, he deemed to have been made to him in his character as co-partner, and to inure to the benefit of his firm.

It is manifest, then, that appellee and his co-partner should have been joined as plaintiffs. Nor do we perceive any reason why appellant is not in a position to avail himself of the nonjoinder. It should be observed that the declaration containing only the common counts, the non-joinder does not appear on the face of the pleadings.

The general rule is, that the omission of proper parties as plaintiffs in actions upon contracts, may be taken advantage of at the trial under the general issue, or on motion in arrest of judgment, or on error. If it appears on the face of the pleadings, it is fatal on demurrer. If there be a legal ground for omitting to use the name of one of several contractees as a plaintiff, as his death, &c., it is necessary to show such excuse for the non-joinder in the declaration, and' to declare as surviving partner. 1 Chit. Plead. 13. For the non-joinder of tbe proper plaintiffs in this case, the judgment must be reversed.

The further point is made by appellant, that even admitting the right of appellee to sue without joining his co-partner as co-j>laintiff, the verdict of the jury was against the preponderance of the evidence.

Appellee’s right to recover undoubtedly must rest upon an empress promise by appellant to pay for paving the street in front of his property. Appellant was under no legal obligation to improve the street, or to pay another for improving it, from which a promise to pay for the improvement when made can be implied. The only evidence of an express promise is that contained in the testimony of appellee. He states, in substance, that the work was finished in December, 1875; that one evening in November, 1875, he presented the bill for the work to appellant, at his house, and that appellant promised to pay it. He is unable to state any of the attendant circumstances, or in what part of appellant’s house the bill was presented, or whether any third persons were present at the time. On the other hand, appellant positively denies the conversation related by appellee, and testifies substantially, that, before the work commenced, appellee came to him with a paper, probably a draft of the contract under which the street was subsequently paved, and wished appellant and his neighbors to sign it. Appellant replied that he did not wish to sign; that he did not want a block pavement, and thought the city was going to macadamize the street, which in his opinion was better; that appellant would not, and never did agree to the proposition to pave with wooden blocks; that after the work commenced, appellee called on appellant, and wanted to know if he would have the paving done in front of his premises; that he replied in the negative, saying that he understood the street was to be macadamized, and that was what he preferred. Appellee then said they would leave appellant’s property unpaved. Appellant said that was what he wanted, and that if they did pave it, he would not pay for it, but they must look to the city for pay. Subsequently, Reilley & Co. sent to appellant a messenger, between whom and appellant substantially the same . conversation took place. Reilly & Co. thereupon paved around appellee’s lot to the center of the street, and said they were going to leave it open. Appellant told them that would suit him, and if they did pave it they must look to the city for their pay, as he would not pay unless the city forced him to. A long while after, appellee came to ascertain if appellant would not pay them something, saying if he would do so, they would make it less than to anybody else, to which appellant replied that he did not want it done at all, and would not pay. Reilly & Co. then went on and did the work, and came to appellant for payment, and he told them to go to the city. Appellee called several times, asking for payment, but appellant never promised to pay for the work; did not want it done, and always told him to go to the city.

There is nothing in the record showing, or tending to show, that these witnesses are not entitled to precisely the same • credit. The recollection of appellant seems, however, to be much more minute and circumstantial, and for that reason alone his -account of the transactions may be regarded as the more credible and convincing. While, undoubtedly, the credibility of witnesses is pre-eminently a question for the jury, still a jury lias no right without sufficient reason, or out of mere caprice, to- set aside the testimony of one witness and adopt as true the statements of another. We are unable, from the record, to perceive any ground upon which the jury could have proceeded in preferring the testimony of appellee to that of appellant. Even if we regard the testimony of these witnesses as equally entitled to belief, thereby leaving - the evidence equally balanced, the verdict should have been for appellant, since the burden was on appellee to establish an express promise by a preponderance of the evidence.

We are inclined to the opinion that the verdict of the jury •was against the preponderance of 'the evidence, and that for '.that reason a new trial should .have been awarded. The judgement is reversed and the cause remanded to the court below ¡for a new trial.

Judgment reversed.


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    Albert G. Gibboney v. Robert H. Gibboney.
    1. Judgment by confession—Power of court to set aside—Good, defense must be shown.—In cases of judgment by confession on a warrant of attorney, it is competent for the court, upon a proper showing being made, to so far vacate such judgment as to permit the parties to defend the same; but it is error to allow such right to defend on motion, unless upon the face of the record, or by some other showing, as a foundation of such motion, it shall appear, prima facie at least, that the defendant has a defense in whole or in part, upon the merits.
    2. Presumption—Error in dismissing suit.—The warrant of attorney not appearing in the record in this case, the court will presume that it was sufficient to justify the court in entering such judgment.- There being no affidavits or other showing of a meritorious defense in support of the motion, it was error to vacate such judgment and dismiss the suit.
    Appeal from the Superior Court of Cook county; the Hon Joseph E. Gary, Judge, presiding.
    Mr. Geo. L. Thatcher and Mr. F. C. Russell, for appellant;
    that there is nothing in the record to impeach the validity of the judgment, and it must be presumed to have warranted the action of the court below, cited Iglehart v. Chicago M. & F. Ins. Co. 35 Ill. 514; Osgood v. Blackmore, 59 Ill. 261; Bush v. Hanson, 70 Ill. 480; Roundy v. Hunt, 24 Ill. 600; Waterman v. Caton, 55 Ill. 94; Hall v. Jones, 32 Ill. 38.
    The court had no jurisdiction over the case for any purpose, after the term at which final judgment was entered: Co. Litt. Lib. 3, 360; 3 Blackstone’s Com. 406; 2 Chitty’s Pr. 335; Cook v. Wood, 24 Ill. 295; Messervey v. Beckwith, 41 Ill. 452; McKindley v. Buck, 43 Ill. 488; Fix v. Quinn, 75 Ill. 232; Coursen v. Hixon, 78 Ill. 339; Denton v. Noyes, 6 Johns. 296.
    Mr. A. T. Galt, for appellee;
    that it will be presumed the court below, decided correctly in vacating the judgment, unless the contrary appears, cited Casey v. Harvey, 14 Ill. 45; I. & St. L. R. R. Co. v. Miller, 62 Ill. 468; St. L. & S. R’y Co. v. Wheelis, 72 Ill. 538; Gardner et al. v. Russell, 78 Ill. 292.
    As far as the record shows, the judgment was entered without a warrant of attorney, and is .therefore void: White v. Jones, 38 Ill. 160; Chase v. Dana, 44 Ill. 262; Burwell v. Orr et al. 84 Ill. 465.
    The note and warrant of attorney should appear in this record: Durham v. Brown, 24 Ill. 94; Waterman v. Caton, 55 Ill. 94.
    The rule that courts will not vacate a judgment at a subsequent term does not apply to judgments entered by confession: Lake v. Cook, 15 Ill. 353; Hall v. Jones, 32 Ill. 38; Wyman v. Yeomans, 84 Ill. 403; Burwell v. Orr et al. 84 Ill. 465.
   Murphy, P. J.

On tlie 29th day of January, 1878, the appellant filed his declaration in the Superior Court of Cook County, against the appellee, counting specially on a promissory note, adding the common counts.

At the same time the appellee, by Bobert S. Hill, his attorney, also appeared in open court and filed a warrant of attorney, executed by the appellee, and a cognovit confessing judgment in favor of the appellant for the sum of sixteen hundred and five dollars, with costs. The court thereupon entered the following order of judgment: “ Therefore, it is considered by the court that the plaintiff do have and recover of and from the defendant, his said damages of sixteen hundred and five dollars, in form as aforesaid, by the said defendant confessed, together with costs.”

This order was entered by the court at its January term, 1878. Afterwards, on the 9th day of April, 1878, the same being one of the days of the April term of said court, on motion of the appellee, without any evidence or showing of any kind, the court vacated the judgment so entered at the January term, two terms of the court having intervened, and dismissed the suit. This was excepted to by the appellant, who prayed an appeal to this court, and assigns for error the ruling of the court below in vacating the judgment and dismissing the suit.

This being a judgment by confession by virtue of a warrant of attorney, and without actual notice to the appellee, it would be competent for the court, upon a proper showing, to so far vacate such judgment as to permit the appellee to defend against the same, to permit an issue to be made up and tried by a jury, as to whether upon the merits of the case he has a defence to the whole or any part of said judgment.

But we are unfamiliar with any rule of law or practice by which such right to defend in such cases will be ordered on motion, unless upon the face of the record or some showing as a foundation for such motion, it shall appear, prima facie at least, that the defendant has a defence in whole or in part to the said judgment upon the merits.

In this case there is nothing appealing upon the face of the record to justify such action of the court. The warrant of attorney, by virtue of which the judgment was confessed, does not appear in the record. We are therefore unable to inspect it, and in its absence must presume it was sufficient to justify the court in entering such judgment. There being no affidavits or other showing of any kind made by the appellee in support of his motion, we think it was error for the court below to vacate the judgment and dismiss the suit, for which error the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


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    George Grusing et al. v. Sarah Shannon.
    Trespass—Failure to prove a joint trespass.—Where the evidence fails to show that all of the defendants were implicated in either of the alleged trespasses, a verdict against all jointly cannot be sustained.
    Appeal from the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.
    Messrs. Rogers & Appleton, for appellants;
    that it is necessary for a landlord to give notice to quit, only to his immediate tenant, cited Roe v. Wiggs, 5 Bos. & Pul. 330; Cosser v. Collinge, 3 Myl. & K. 283; Shouldham v. Lawlor, Irish Cir. Rep. 302; Pleasant v. Benson, 14 East. 234; Miller v. White, 80 Ill. 580; Patchell v. Johnston, 64 Ill. 305.
    Where it is sought to establish a joint liability, it must be shown that' the defendants acted in concert: Brooks v. Ashburn, 9 Geo. 297; Guille v. Swan, 19 Johns. 381; Langdon v. Bruce, 1 Williams (Vt.) 657; McIntyre v. Green, 36 Geo. 48; Bird v. Lynn, 10 B. Mon. 422; Bard v. John, 26 Penn. 482; Miller v. Shaw, 4 Allen, 500; Jansen v. Varnum, 11 Chicago Legal News, 59; Schuylkill Co. v. Richards, 57 Penn. 142.
    A recovery against all the defendants can be had only for those acts in which all participated: Myrick v. Downer, 18 Vt. 360; Olzen v. Schierenberg, 3 Daly, 100; Wilson v. Barker, 4 Barn. & Adol. 614; Langdon v. Bruce, 1 Hill, 657; Moody v. Whitney, 34 Me. 563; Clay v. Sandifer, 12 B. Mon. 334; Folger v. Fields, 12 Cush. 93; Taft v. Metcalf, 11 Pick. 456.
    As to evidence of malice: Pierce v. Millay, 44 Ill. 189; Beveridge v. Rawson, 51 Ill. 504.
    Subsequent approval of a trespass by a third person will not render him liable unless the act was originally done in his name or for his use: Grund v. Van Vleck, 69 Ill. 478.
    The court should have pronounced judgment on the verdict, or awarded a new trial; it could not be amended without consent of the jury or counsel for the defendants: Cunningham v. Dyer, 2 T. B. Mon. 50; Cole et al. v. The People, 84 Ill. 216; Frazier v. Laughlin, 1 Gilm. 347; Hinckley v. West, 4 Gilm. 136; Wilderman v. Sandusky, 15 Ill. 59; Bodine v. Swisher, 66 Ill. 536; Hine v. Robbins, 8 Conn. 342.
    Mr. Chester Kinney, for appellee;
    that the court will not interfere to set aside a verdict unless it is manifestly against the law or evidence, cited Eldredge et al. v. Huntington, 2 Scam. 535; Johnson v. Moulton, 1 Scam. 532; Smith v. Schultz, 1 Scam. 491; Bruce v. Truett, 4 Scam. 454; Dawson v. Robbins, 5 Gilm. 72; Wheeler v. Shields, 2 Scam. 348; Duffield v. Cross, 13 Ill. 699; Chase v. Debolt, 2 Gilm. 371; Boyce v. Levings, 24 Ill. 223; Clement v. Bushway, 25 Ill. 200; Unlauf v. Bassett, 38 Ill. 96; Simons v. Waldron, 70 Ill. 281; Connoly v. The People, 81 Ill. 379; Kightlinger v. Egan, 75 Ill. 141; Chapman v. Burt, 77 Ill. 337; Papineau v. Belgarde, 81 Ill. 61; Corwith v. Colter, 82 Ill. 585.
   Pleasants, J.

This was an action of trespass quare elausvm against appellants and S. E. Rockwell, a constable.

The declaration contained four counts, alike in the allegation of the breach and entry, but differing in additional averments. In the first, that defendants removed the roof and tore down other parts of the building, thereby injuring and destroying plaintiff’s stock of groceries therein; in the second, that they tore off the roof so that the rain beat in and damaged the goods; in the third, that they expelled plaintiff from the premises ; and in the fourth, that they took and removed the goods and threw them into the street.

Pleas of the general issue and of license were put in on behalf of all the defendants, and an additional one of justification under a writ of restitution, by Rockwell. The jury returned a verdict of guilty against all, and assessed the plaintiff’s damages at nine hundred dollars.

After a motion for a new trial had been overruled plaintiff dismissed the suit as to Rockwell, and judgment was thereupon-entered against the others, who appealed.

The following is an outline of the facts: Defendant Hooker,, then the owner of the premises-—-a rickety old frame building, bricked up four inches outside—-leased the same for a year from the first of May, 1875, to one Watson, who, contrary to the terms of his lease, sub-let the upper portion without the consent of his landlord, to Milligar, and after being notified on the 14th of July of the termination of his tenancy for non-payment of his rent-, also sub-let the lower part to the plaintiff. On the 23d Hooker filed his complaint against Watson and Milligar for-forcible detainer, apparently without knowledge of the occupancy of plaintiff, and in due course obtained judgment. Pending these proceedings, on the 12th of August he sold the-building to the defendant, Mrs. Grusing, and a few days thereafter her husband, as her agent, proceeded with workmen to-take down the old outer wall and erect a new one twelve inches wide in its stead. This occupied from two to three weeks, and was immediately followed by the removal of the old roof. Hnfortunately for the parties, and unexpectedly—for the weather had till then been favorable—just at that time, which was on the 8th or 9th of September, came the rain-storm that damaged plaintiff’s goods. Operations were necessarily suspended' during its continuance, but the new roof was put on as soon after as was practicable.

This work of Grusing upon the old walls and roof is evidently the subject of complaint in the first and second counts of the declaration; and it is therefore matter of surprise that neither of the counsel adverted, in argument or brief, to the evidence in the record that it was done-with plaintiff’s consent ■—given, probably, in the expectation, which she says she had, of remaining there as tenant of his wife, but not induced by any fraud or deception on their part. We think it clear that she did consent and take the risk of the weather.

If, however, it was otherwise, it does not appear that Hooker was in any way responsible for these acts. Having sold the building, he certainly had no interest in the repairs as such. But it is said—and it is the only ground on which he is sought to be charged in this behalf—that when informed by Grusing of what he was doing and intending in the way of repairs, he told him, in view of its probable effect to drive out the occupants, and thus relieve himself of an assumed obligation to clear the building for his vendee, to “ go ahead.”

If such a remark, under the circumstances, would charge him, there is no evidence tending to show that he made it. All that relates to it came out on the cross-examination of Grusing. Having stated positively, in chief, that Hooker “ had no connection of any kind with the repairs,” and on cross-examination, in answer to leading questions, that he had requested Hooker to clear the building and give his wife possession—that he often saw him during the progress of the repairs—that he informed him of what he was doing—and that Hooker might then have told him to “ go ahead,” although he denied all recollection of it—he was asked if on a former trial he had not sworn that Hooker so told him, and answered that he did not recollect but might have done it; and finally, “if you did is it true? ”—a question we often hear put, but deem worse than useless, because, while incapable of bringing out legal proof of any fact it is liable to be regarded as offensive—to which he answered, “Yes, I give in on that.”

This cross-examination elicited nothing against Hooker. It was not followed by any evidence that Grusing ever swore to his making the remark. Such evidence, if introduced, would have had no tendency to prove that he did make it. Its only legitimate object would have been to impeach Grusing, and that accomplished, the case would have been left without any credible evidence in relation to the fact in question.

The acts complained- of in the second and third counts—the putting out of the plaintiff and her goods—seem to have been wholly independent of those above considered. They were committed more than a fortnight afterwards, on the 24th day of September, by ¡Rockwell and his assistants, under color of a writ of restitution in favor of Hooker, and in consummation of proceedings instituted by him before Mrs. Grusing had acquired or contemplated acquiring any interest in the premises. With the issuance and execution of the writ, so far as we can discover, the Grusings had no more to do than had Hooker with the repairing. They had asked him to clear the building, as they lawfully might, but made no suggestion as to the means he should employ, and had no reason to suppose he would employ any but such as would be lawful. He had already commenced proceedings to that end, and obtained judgment in his own name and for his own use: and although it was after he sold that he regained the possession, yet this also was for his own use, and he delivered it over as vendor and not as agent. Their acceptance of it, therefore, was not such an approval of the means by which he obtained it as to make them liable therefor. Grand v. Van Vleck, 69 Ill. 478.

Where the evidence so fails to show that all of the defendants were implicated in either of the alleged trespasses a verdict against all jointly cannot be sustained. Ibid.

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

Reversed and remanded.


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    William H. Gifford et al. v. Luther K. Tucker.
    Judgment against parties not served with process. — Where it appears that only one of several parties defendant was served with process, who appeared for himself alone, and no appearance was entered by the others, it is erroneous to enter judgment upon a verdict against all the defendants named in the summons. The fact that motions were made by all the defendants, after verdict against them, for the purpose of preventing a judgment thereon, does not give the court jurisdiction of the persons of those not served.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. R. W. Smith, for appellants;
    that the burden of proof is upon the plaintiff, cited Hinman v. Pope, 1 Gilm. 131; Watt v. Kirby, 15 Ill. 200; Stevenson v. Marony, 29 Ill. 532; Union Nat. Bank v. Baldenwick, 45 Ill. 375; Crabtree v. Reed, 50 Ill. 206; Broughton v. Smart, 59 Ill. 440; Singer v. Jennison, 60 Ill. 443.
    An instruction that if the jury believe the plaintiff has willfully sworn falsely they may disbelieve him, except in so far as he is corroborated, was proper, and should have been given: Howard v. McDonald, 46 Ill. 123; Hall v. Rosehill & E. R. Co. 70 Ill. 673.
    Upon the question of agency: Thornton v. Boyden, 31 Ill. 200; Goodrich v. Pearson, 33 Ill. 498; Mathews v. Hamilton et al. 23 Ill. 470; Rawson v. Curtiss, 19 Ill. 456; C. & G. R. R. Co. v. Fox et al. 41 Ill. 106; Hughes v. Washington, 72 Ill. 84.
    A new trial should be granted where it is apparent the jury have erred or have disregarded the evidence: Gordon v. Crooks, 11 Ill. 142; Higgins v. Lee, 16 Ill. 495; Gibson v. Webster, 44 Ill. 483; City of Peru v. French, 55 Ill. 317; St. Paul F. & M. Ins. Co. v. Johnson, 77 Ill. 598; Smith v. Slocum, 62 Ill. 354.

      Mr. Henry A. Gardner, for appellee;
    that no objection having been made to the evidence on the trial, it cannot now be urged, cited I. B. & W. R. R. Co. v. Rhodes, 76 Ill. 285.
    Refusal to give instructions cannot be urged when the bill of exceptions does not purport to contain all the instructions that were given: Strohm v. Hayes, 70 Ill. 41; Ives v. Vanscoyoc, 81 Ill. 120.
    The court will not consider anything not assigned for error: Gilbert v. Mofford, 1 Scam. 471.
   Murphy, P. J.

This was an action of assumpsit in the Superior Court of Cook county, instituted by the appellee against the appellants, to recover for work and labor done, and for the use of a horse and buggy for a time alleged to have been employed in and about the business of the appellants. Service of summons was only obtained upon the appellant James H. Palmeter, who appeared in the court below, by counsel, and plead the general issue for himself, cautiously avoiding any act which in law would be an entry of the appearance of any of his co-defendants. Upon that plea issue was formed. Upon a trial of which .the appellee recovered a verdict and judgment against all the appellants, for the sum of $193.50 and costs, to which appellants excepted, and prayed an appeal to this court; and bring the record here and ask a reversal of the judgment, for the reason, amongst others, that it was error to render judgment against all the appellants when but one was served with process.

It is insisted by the appellee that the appearance of all the appellants was entered in the court below by the attorney who appeared in that court for Palmeter, and if not, then the point has not been assigned for error, and insists that the appellants cannot avail themselves of such error in this court. The seventh assignment of error is: “ The court erred in' rendering judgment on the verdict.” This we think sufficiently presents the question in this court. We have examined the record carefully, and are of opinion that there is nothing in it indicating a purpose on the part of the attorney who appeared in the court below, to enter the appearance of the appellants not served, hut that, taken altogether, we think the record discloses the fact that the appellants, except said Palmeter, were not in court. The fact that it appears that motions were made in the name of all the appellants, after the return of the verdict against them all, for the purpose of preventing a judgment thereon against them, did not serve to give the court jurisdiction of the persons of the appellants not served with process. We think that upon this state of the record it was error to render judgment on the verdict against all the appellants. It is claimed by the appellants that the verdict is not sustained by the testimony; but as the case will have to be submitted to another jury, we forbear any discussion of the facts in the case, as such a course might tend to influence such trial unduly. But for the error above stated, the judgment of the court below is reversed and the cause remanded.

Judgment reversed.