House v. Wilder

• Decision Date: 30 September 1868
• Parties: LYDIA A. HOUSEv.WILLIAM G. WILDER et al.
• Court: Illinois Supreme Court

47 Ill. 510

1868 WL 5031 (Ill.)

LYDIA A. HOUSE

v.WILLIAM G. WILDER et al.

Supreme Court of Illinois.

September Term, 1868.

WRIT OF ERROR to the Circuit Court of Kane county; the Hon. RICHARD G. MONTONY, Judge, presiding.

The facts in this case fully appear in the opinion of the court.

Messrs. BARRY & BOTSFORD, for the plaintiff in error.

Mr. A. M. HERRINGTON, for the defendants in error.

Mr. JUSTICE WALKER delivered the opinion of the Court: This was an action of forcible entry and detainer, brought by plaintiff in error, before a justice of the peace of Kane county, against defendants in error, to recover the possession of a dwelling-house and two lots in the town of Geneva. A trial was had before the justice, when the jury found for plaintiff. An appeal was taken to the Circuit Court, where there were two trials had, both resulting in verdicts in favor of the plaintiff, which were set aside by the court, and new trials awarded A change of venue was then had, by consent, to the Court of Common Pleas of the city of Aurora, where a trial was subsequently had, before a jury. After hearing the evidence, the court instructed the jury to find a verdict for the defendants, which they did. The case is brought to this court and this instruction is assigned for error.

This record presents the question, whether the court could give such an instruction, because the evidence varied from the plaint as to the extent of plaintiff's possession of the premises, or should the jury have been permitted to pass upon the evidence and find their verdict uninstructed by the court on the character of the testimony. In the plaint upon which the action was based, plaintiff alleged that she had the sole possession of the house and premises, -- while, at most, the evidence only shows that she was in the sole possession of two rooms of the house, and a possession in common with Rich, of the remainder. There was, then, a clear and manifest variance between the plaint and the evidence; and no witness states, nor do we find any circumstance detailed in the evidence, from which it can be inferred that plaintiff had the sole possession of more than the two rooms.

It is the settled practice, as held by this court, not to instruct the jury as to the weight of the evidence, or as to how they should find, when there is evidence before them tending to prove the issue. Whenever the evidence is conflicting, or tends to prove the issue, however slightly, the court should never instruct as to its weight, or as to their finding. But while this is true, the practice is as well settled, that where the evidence varies essentially from the pleadings, the court may exclude it from the consideration of the jury. If, then, in this case, the evidence essentially varied from the allegations contained in the plaint, the court was authorized to exclude it, and could not have refused to do so if asked by the defendants. And if there was such a variance, and the...