Lawrence v. Oglesby

• Decision Date: 17 February 1899
• Citation: 178 Ill. 122,52 N.E. 945
• Parties: LAWRENCE v. OGLESBY.
• Court: Illinois Supreme Court

178 Ill. 122

52 N.E. 945

LAWRENCE

v.OGLESBY.

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from appellate court, Third district.

Action by Georgia Oglesby against Arthur Lawrence. From a judgment of the appellate court affirming a judgment for plaintiff (75 Ill. App. 669), defendant appeals. Affirmed.

Oscar Allen, for appellant.

A. L. Anderson and Beach & Hodnett, for appellee.

PHILLIPS, J.

Appellant, a brother of appellee, was, with the latter, a legatee under the will of Alexander Lawrence, who had by his will devised to appellant property of the value of about $25,000, subject to a charge in favor of another brother amounting to about $3,500. By the will a life estate in land of about the value of $7,000 was devised to appellee, with remainder to her children who attained the age of 21. In his lifetime, Alexander Lawrence promised his daughter, the appellee, to build on the land so devised to her a house of the value of $1,500. On or about June 29, 1896, Alexander Lawrence received a serious injury, which caused his death about five weeks thereafter. Within two hours after receiving the injury, he asked to be left alone with Mrs. Turner, his sister-in-law, and the appellant. Mrs. Turner testifies: ‘He asked all to go away, except Arthur and myself. He said to me, ‘I want you to hear what I am going to say;’ then, ‘I have made my will;’ then to Arthur, ‘I want you to pay Georgia $1,500 not mentioned in my will.’ He asked Arthur if he heard that. He bowed his head, and said he did. He says, ‘You hear that, Frank?’ I said, ‘Yes, sir.’ He said to Arthur again, ‘You will do that Arthur?’ and Arthur said that he would. This was an hour or two after the injury. My given name is Frances. I am called Frank in the family.' A part of this conversation was overheard by the appellee. The appellant admits the conversation was had as testified to by Mrs. Turner, but claims that subsequent to that time-about two or three weeks afterwards-he had another conversation with his father, which he details, and which, as shown by the abstract, was as follows:‘Now, you may state, Mr. Lawrence, what was said in that conversation.’ To this question plaintiff objected. The court overruled the objection, and plaintiff excepted, and the witness answered: ‘My best recollection is that father broached the subject in regard to this $1,500, and I asked him, I says: ‘As I haven't the money,’ I says, ‘do I have to mortgage the land, or do I have to borrow the money, to pay this?’ He says, ‘No, sir,’ he says; ‘as you get the money off of the farm, you pay it to them.’ I says, ‘I will.’ My sister came in there when I told my father that I would, and I told her in just a little bit afterwards what it was that I had agreed to do. I agreed to pay the $1,500. I don't know that my father said anything more,-only just what I have told. I have not at any time since coming into possession of those lands under my father's will been able to raise the $1,500 for my sister without incumbering the property.' The appellee brought an action at law to recover the $1,500, and filed a declaration containing the common counts and a special count. The plaintiff recovered in the trial court, and on appeal to the appellate court for the Third district that judgment was affirmed. No propositions were asked or held on the trial. By the assignment of errors on the record of the court, it is claimed error was committed in admitting improper evidence, and in excluding proper evidence, and in the finding and judgment for the plaintiff. No other questions were presented by the assignments of error on that record.

On this appeal from the appellate court the appellant assigns as error that the appellate court erred (1) in affirming the judgment of the circuit court; (2) in not holding that the count of the declaration relied upon shows no cause of action cognizable at common law; (3) in holding that a consideration was shown for the alleged promise; (4) in adopting in its opinion rules to govern its decision which, however applicable in equity, are not applicable at common law; (5) in holding the statement of facts in the opinion of which it bases its decision shows a legal cause of action; (6) in holding that any consideration in shown by the evidence for the alleged promise; (7) in holding as unworthy of belief witnesses against whom there is no impeaching evidence; (8) that the court erred in assuming as the ground of its opinion that certain things were evident to the circuit court which the record shows were not before the circuit court at all, thus assuming original instead of appellate jurisdiction; (9) that the court erred in declining to pass upon legal questions submitted to it for its decision; (10) that the court erred in assuming question of fact as a reason for not passing upon legal questions submitted for decision; (11) that the court erred in not holding that improper evidence was admitted for plaintiff in the circuit court.

The opinion of the appellate court is not a record on which errors can be assigned on writ of error or appeal to this court, as has been frequently held; and this disposes of the fourth, fifth, seventh, eighth, and tenth assignments of error.

No propositions of law having been presented, the finding of the trial and appellate courts is conclusive on this court on the facts; and for this cause the third and sixth assignments cannot be considered.

The only objection to the admission of evidence urged in the brief of appellant was in admitting the will and inventory of the estate of Alexander Lawrence. The basis of the appellee's claim was by reason of a promise made by the appellant because of the fact that a will had been made under which appellant was a beneficiary; and no conclusion can be had, other than that the request made by Alexander...