Bell v. Gardner

• Decision Date: 31 January 1875
• Citation: 1875 WL 8314,77 Ill. 319
• Parties: HENRY BELL, Admr.v.PARKER GARDNER et al.
• Court: Illinois Supreme Court

77 Ill. 319

1875 WL 8314 (Ill.)

HENRY BELL, Admr.

v.PARKER GARDNER et al.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of DeWitt county; the Hon. CYRUS EPLER, Judge, presiding.

This was a bill in chancery, originally filed by Elizabeth Ewing, in her lifetime, against Parker Gardner and Joseph Gardner, for a new trial in an action at law. Upon the death of the complainant, Henry Bell, her administrator, was substituted as complainant. The court below dismissed the bill, and the administrator appealed.

Messrs. SWEENEY, MOORE & WARNER, for the appellant.

Messrs. WELDON, DONAHUE & KELLY, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This bill was filed by Elizabeth Ewing, in her lifetime, to obtain a new trial in a common law cause, wherein she was plaintiff and appellees were defendants. In the original bill, the right to relief seems to be based on two propositions: 1st, that complainant was surprised by the evidence introduced at the trial; and, 2d, that she had since discovered new testimony that materially affects the merits of the cause, and if afforded an opportunity to present it, it would change the result of the suit.

By an amendment to the bill, it is alleged, in general terms, that the verdict was the result of “fraud, accident or mistake,” but the particular grievance set forth is, the inconsiderate haste with which the judge of the circuit court required the trial to be conducted. It is charged there was no reasonable opportunity allowed counsel to present plaintiff's cause to the consideration of the jury, nor was she allowed any time, after verdict, to procure affidavits of newly discovered evidence, to be used in support of a motion for a new trial, which, it is alleged, could have been obtained had reasonable opportunity been given for that purpose.

Under no view of the case that can be taken, are we able to perceive any equitable ground of relief. The common law suit between the parties was upon a promissory note. It had been given for the balance due on a lot of sheep. The defense interposed was, the sheep were warranted to be sound, when, in fact, they were unsound.

On the trial of the issue joined, a great deal of testimony was heard. The jury found for defendants. Both parties gave evidence as to the warranty and the soundness of the sheep, and so nearly balanced was the evidence, it is alleged in the bill, as a reason why no appeal was taken, it would have been unavailing. But it is insisted complainant was surprised at the character of the testimony as to the soundness of the sheep. Whether this is true, or not, can make no difference. She was fully apprised of the nature of the defense that would be insisted upon, by the affidavit for continuance on account of the absence of the...