Lowry v. Coster
| Decision Date | 30 September 1878 |
| Citation | 1878 WL 10252,91 Ill. 182 |
| Parties | DOUGLAS D. LOWRYv.SYLVIA L. COSTER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court of the Second District; the Hon. EDWIN S. LELAND, presiding Justice, and the Hon. JOSEPH SIBLEY, and the Hon. NATHANIEL J. PILLSBURY, Justices.
Mr. B. F. PARKS, and Mr. PAUL G. HAWLEY, for the appellant.
Mr. RANDALL CASSERN, for the appellee.
This was an action on the case, brought by Sylvia L. Coster, in the circuit court of Kendall county, against Douglas D. Lowry, under the Dram-shop act, to recover for injury in her means of support in consequence of the habitual intoxication of her husband, Philander C. Coster, from intoxicating liquors sold him by the defendant. On a trial of the cause in the City Court of Aurora, before a jury, to which the venue had been changed by the circuit court on the application of the defendant, the plaintiff recovered a judgment for $1000, which, upon appeal, was affirmed in the Appellate Court. The defendant, however, not being satisfied with the decision of the Appellate Court, has prosecuted an appeal to this court.
The first error relied upon is, that the circuit court had no right to change the venue of the cause to the City Court of Aurora. Section 191, Rev. Stat. 1874, page 345, provides that city courts shall have concurrent jurisdiction with the circuit courts within the city in which the court is located, in all civil cases, and in all criminal cases except treason and murder, and in appeals from justices of the peace in the city. Section 2 of the Venue act, Rev. Stat. 1874, page 1093, provides that when a change of venue is granted, it may be to some other court of record of competent jurisdiction, in the same or some other convenient county to which there is no valid objection. Under these provisions of the statute, we perceive no reason why the venue might not properly be changed to the city court. It was a court of record of competent jurisdiction, which is all the statute requires.
Section 13 of the Venue act declares: “The order shall be void, unless the party obtaining a change of venue shall, within fifteen days, or such shorter time as the court or judge may prescribe, pay to the clerk the expenses attending the change.” The expenses attending the change were not paid by the defendant. The clerk, however, made out the necessary record, and forwarded all the papers to the city court, where the defendant entered a motion to remand to the circuit court, because the costs had not been paid. The defendant could not take advantage of his own wrong. It was his duty to pay the costs. Perhaps the other side might have availed of his failure to do so, but the defendant could not. If the papers were transmitted to the city court, and the plaintiff made no objection on the ground the costs had not been paid, defendant had no right to make any objection.
Several objections are urged to the decisions of the court during the trial on the admission and exclusion of evidence. While it may be true that the technical rules of evidence may not have been strictly observed, yet, after a careful examination of the whole record, we fail to perceive that any evidence was admitted or excluded which would defeat the ends of justice, or prevent a fair, impartial verdict in the case. Under such circumstances, although slight error may have been committed, no ground for a reversal of the judgment exists.
It is insisted, that record proof of the marriage was required, and the court erred in permitting plaintiff to testify to the marriage. This was a civil action, and we do not understand that record evidence of the marriage was required. Green-leaf on Evidence, sec. 461, lays down the rule, that upon the trial of indictments for polygamy and adultery, and in actions for criminal conversation, direct evidence of marriage is required, but in all other cases any other satisfactory evidence is sufficient. In sec. 462 it is said, marriage may also be proved, in civil cases, by reputation, declarations and conduct of the parties, and other circumstances usually accompanying that...
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