Cox v. Brackett
| Decision Date | 30 April 1866 |
| Parties | WILLIAM COXv.JOSHUA A. BRACKETT. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.
This was an action on the case brought in the court below by Joshua A. Brackett against William Cox, George A. Hall and J. H. Marsh, for the recovery of damages for injuries alleged to have been received on being run over by the horses of the defendants while the same were running away through the carelessness and mismanagement of the latter. The declaration contained no averment of the exercise of due care on the part of the plaintiff to avoid the injury. A judgment being rendered for the plaintiff, the defendants sued out this writ of error. A full statement of the case will be found in the opinion of the court.Mr. W. K. MCALLISTER, for the plaintiff in error, upon the principal question, contended the declaration was defective in substance, because it does not, in any manner, thereby appear that the plaintiff below was in the exercise of ordinary care to avoid the injury, for the redress of which he brought this action, citing Chicago, Burlington and Quincy Railroad Company v. Hazzard, 26 Ill. 376; Butterfield v. Forrester, 11 East, 60; Humiston v. Harlow, 6 Cow. 192; Lane v. Crombie, 12 Pick. 177; Smith v. Smith, 2 Id. 621; Adams v. Carlisle, 21 Id. 146; Flower v. Adam, 2 Taunt. 314; Button v. Hudson River Railroad Company, 18 N. Y. 248.
Counsel also insisted the action should have been trespass, not case, citing 2 Ch. Pl.; 3 East, 601; 1 East, 109.
Mr. WALTER B. SCATES, on the same side, upon the question of the sufficiency of the declaration, cited the following, in addition: Galena and C. U. R. R. Co. v. Fay, 16 Ill. 569; C. and G. M. R. R. Co. v. Jacobs, 20 Id. 478; G. and C. U. R. R. Co. v. Garwood, 15 Id. 469.
Messrs. DOW & THOMPSON, for the defendant in error, insisted the declaration was sufficient, citing Illinois Central Railroad Co. v. Simmons, 38 Ill. 242; Smith v. Eastern Railroad Co., 35 N. H. 356; Beatty v. Gillmore, 16 Penn. 467; Moore v. Central Railroad Co., 4 Zabr. (N. J.) 284; May v. Hanson, 5 Cal. 360.Mr. MELVILLE W. FULLER argued the case on the same side.
This was an action on the case brought in the Cook Circuit Court at the March Term, 1864, by Joshua A. Brackett against William Cox and others for suffering their horses, by reason of their carelessness and mismanagement, to break away from them, and with force and violence run against and upon the plaintiff, knocking him down, breaking his bones and otherwise disabling him, so that he became sick and sore, lame and disordered, and so remained for a long time, suffering great pain, and was hindered and prevented from attending to his ordinary business, by which he lost great profits, and was forced and obliged and did expend large sums of money, in all five hundred dollars, in endeavors to be cured of the fractures, wounds and bruises.
The second count is similar to this, with the additional averment that defendants' horses were vicious and they knew it.
The plea was said to be the general issue which, by some accident, was averred to be lost from the files. A default for want of a plea was regularly taken at the May Term, 1864, and on the 21st of that month.
A motion was made at the same term by Cox to set aside the default and for leave to plead, for reasons stated in the affidavit on file. On the same day, Cox filed the affidavit of C. L. Jenks, his attorney, stating, in substance, that, on the 10th day of May, 1864, Jenks drew and filed in the cause the plea of the general issue for him, Cox; that affiant knew of his own knowledge that this plea was properly entitled, drawn and signed and filed in time; that it was removed from the files, but did not know how or by whom; that he fully believed the plea was on file until he learned on the 24th of May inst. of the judgment.
On the 20th of the same month of May, Cox filed his own affidavit, stating that, immediately after being served with the summons in the cause, he employed Jenks to conduct his defense, who wrote out a plea in the cause, and his attorney told him that the plea was filed and the cause would be tried when reached on the docket; and then he goes on to assert he was not guilty, and to show how the accident occurred.
This motion was overruled, on the ground that the court had no power to set aside a default after...
To continue reading
Request your trial
-
Cramer v. Illinois Commercial Men's Ass'n
...any alleged error of law, and can only amend it in matter of form after notice to the opposite party. Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Barnes v. Henshaw, 226 Ill. 605, 80 N. E. 1076;People v. Wilmot, 254 Ill. 554, 98 N. E. 973. The court, however, may correct errors of......
-
Jansen v. Grimshaw
... ... Therefore the motion of plaintiff to vacate and set aside said judgment should have been overruled, and defendant's cross-motion to strike the cause from the docket should have been sustained. Garner v. Crenshaw, 1 Scam. 143;Ryder v. Twiss, 3 Scam. 4;Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Messervey v. Beckwith, Id. 452; McKindley v. Buck, 43 Ill. 488;Knox v. Bank, 57 Ill. 330;Lill v. Stookey, 72 Ill. 495;Coursen v. Hixon, 78 Ill. 339;Becker v. Sauter, 89 Ill. 596;Blake v. Miller, 8 N. E. Rep. 828; Baptist v. Transportation Co., 29 Fed. Rep. 180. A former judgment ... ...
-
The Fame Ins. Co. v. Mann
...v. Buck, 43 Ill. 488; State Savings Inst. v. Nelson, 49 Ill. 171; Lilly v. Shaw, 59 Ill. 72; Windett v. Hamilton, 52 Ill. 180; Cox v. Brackett, 41 Ill. 222. An application to extend time for filing a bill of exceptions must be made within the time originally limited: Evans v. Fisher, 5 Gilm......
-
Darby v. Dixon
...to make a substantial alteration therein at a subsequent term, cited Morgan v. Hays, Breese 126; Cook v. Wood, 24 Ill, 295; Cox v. Brackett, 41 Ill. 222; McKindley v. Buck, 43 Ill. 488; Windett v. Hamilton, 52 Ill. 180; Knox v. Winsted Savings Bank 57 Ill. 330; T. P. & W. R'y Co. v. Eastbur......