Gilbert v. Wallace G. Bone.

• Decision Date: 30 September 1875
• Citation: 1875 WL 8632,79 Ill. 341
• Parties: AMON S. GILBERTv.WALLACE G. BONE.
• Court: Illinois Supreme Court

79 Ill. 341

1875 WL 8632 (Ill.)

AMON S. GILBERT

v.WALLACE G. BONE.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. J. M. KIRKPATRICK, for the appellant.

Mr. JOHN J. GLENN, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was debt, by appellant, against appellee, for issuing a marriage license, while acting as county clerk, to a minor, without having first obtained the consent of the parent or guardian. The case was brought to this court at the September term, 1872, and reversed for error in overruling demurrer to appellee's pleas. See Gilbert v. Bone, 64 Ill. 518. After the case was remanded to the court below, appellee's plea was amended so as to obviate the objections pointed out in the opinion given by this court; trial was had before the court and a jury, and verdict rendered in favor of appellee. Appellant moved for a new trial, which motion the court overruled, and gave judgment on the verdict of the jury.

It is argued, with much apparent sincerity and earnestness, by the counsel for the appellant, that the verdict is not authorized by the evidence. After a thorough examination of the evidence, and mature consideration thereof, we are of opinion this position is not tenable.

While it is true this is a civil action, and it was unnecessary that the appellant's proof should establish the liability of the appellee with the same degree of certainty required in criminal cases, as is held in Webster v. The People, 14 Ill. 367. Wells v. Head, 17 Id. 205, and in other cases decided by this court, yet it is brought under a penal statute, and, before a party is allowed to recover in such case, he must bring himself clearly within the provisions of the statute. Edwards v. Hill. 11 Ill. 23; Erlinger v. Boneau, 51 Id. 95. And there is nothing in the opinion filed, when this case was here before, inconsistent with this rule.

With regard to granting new trials because of the insufficiency of the evidence to sustain the verdict, we are aware of no ruling by this court, and are unable to perceive why there should be any, holding otherwise, in cases like the present, than is held in all civil cases, namely: that the court will not disturb a verdict merely because if the question of fact had, in the first instance, been submitted to it instead of to the jury, it would have come to a different conclusion from that reached by the jury, and that, to authorize the interference of the court in this respect, the evidence must clearly and palpably preponderate against the verdict. The evidence must, of course, be considered with reference to the issues before the jury; but only when it is evident, at first blush, that the conclusion of the jury with reference to those issues is unauthorized by the evidence, is it the duty of the court to set the verdict aside.

There was but one witness whose evidence was heard in reference to what transpired when the license was issued, and that was appellee. His testimony is distinct and positive that he had no previous knowledge of the age of appellant's daughter; that application was made to him for a license by Emory S. Haradon, authorizing the marriage of said Haradon and Ophelia Gilbert, appellant's daughter; that he first personally examined said Haradon, under oath, touching his age and that of appell...