Lowry v. Orr
| Decision Date | 31 December 1844 |
| Citation | 1 Gilman 70,6 Ill. 70,1844 WL 4055 |
| Parties | JOHN K. LOWRYv.CHRISTOPHER ORR et al. |
| Court | Illinois Supreme Court |
TRESPASS de bonis asportatis, brought by the plaintiff in error, against the defendants in error, in the Peoria circuit court, and tried before the Hon. JOHN D. CATON and a jury, at the April term, 1842. The jury found a verdict for the defendants, whereupon the plaintiff moved for a new trial, which motion was overruled by the court. The plaintiff brought the case into this court by writ of error. The pleadings and evidence in the court below are very fully set out in the opinion of this court.
The case was submitted on the written arguments of counsel, from which the following abstract of points and authorities is made by the reporter.
N. H. PURPLE, for the plaintiff in error: There is no evidence to prove the property to have belonged to Samuel Lowry. All the evidence upon this subject is contained in the testimony of Wren, Voris, Bryant and Bryson, and does not sustain the defendants' plea. The other evidence is consistent with the plaintiff's right to recover, and, taken alone, would be wholly insufficient to sustain the plea.
The weight of evidence is clearly in favor of the plaintiff.
There is no contrariety of evidence in the cause, but it is all consistent and tends to prove the same state of facts.
Admitting the goods to have been purchased by John K. Lowry, with the money or property of his father, Samuel Lowry, still he would be only the trustee of his father, and the goods could not be reached by execution.
The law is understood to be, “that a new trial will be granted notwithstanding there is evidence on both sides, if the weight of evidence is so clearly against the verdict that there is well founded reason to believe that justice has not been done.” Jackson v. Steinburg, 1 Caines, 162. In this case the court say, “the testimony is very contradictory, yet none of the witnesses appear to have been impeached.” See, also, Mumford v. Smith, 1 Caines, 520; Mann v. Parker, 1 Cowen, 244; Hammond v. Wadhams, 5 Mass. 353; Wait v. M'Neill, 7 do. 261.
In the following cases, the court refused new trials on the ground that the evidence was contradictory. De Tonclear v. Shotterkirk, 3 Johns. 170; Douglass v. Toucey, 2 Wend. 353; Smith v. Hicks, 5 do. 48; Jackson v. Loomis, 12 do. 27; Winchell v. Latham, 6 Cowen, 682.
E. N. POWELL and W. F. BRYAN, for the defendants in error: Courts will reluctantly interfere to set aside a verdict and grant a new trial, where the proceedings have been regular, and no misconduct has happened in the jurors, merely because the jury may have judged mistakenly with regard to the weight of the testimony. Wickersham v. The People, 1 Scam. 128.
Nor will a court grant a new trial when substantial justice has been done, though the law arising on the evidence would have justified a different result. Smith v. Schultz, 1 Scam. 490.
It is well settled, that in trials by jury the weight of testimony is a question to be decided by the jury exclusively, and their decision can not be assigned for error. Johnson v. Moulton, 1 Scam. 532. And in order to warrant a new trial, it must be flagrant, to justify a court in disturbing the verdict. Ibid.
After a trial on the merits, the reason for disturbing a judgment rendered on finding, after all the testimony has been heard, must be strong and urgent to warrant a new trial. Eldredge v. Huntington, 2 Scam. 538; Webster v. Vickers, Ib. 296; Harmon v. Thornton, Ib. 354.
Where the evidence is contradictory, making it the duty of the jury to decide upon the credibility of the witnesses, the court will not set aside the verdict as against the weight of evidence, although it seems to preponderate against the finding of the jury, Douglass v. Toucey, 2 Wend. 352; Swain v. Hall, 2 Wills 45; Leigh v. Hodges, 3 Scam. 18.
There must be a plain mistake of law, or fact, to justify the interposition of the court by granting a new trial. It is not sufficient ground for a new trial, that the evidence does not strike the court in the same point that it appears to the jury. Griffith v. Willing, 3 Binn. 317.
Though the judge who tried the cause, inclined that the weight of evidence was with the plaintiff, yet it is no ground for awarding a new trial, that the jury have differed from him in opinion. Campbell v. Sproat, 1 Yeates 327; McIntire v. Cunningham, Ib. 363.
It must be a very strong case, indeed, that would warrant the court to grant a new trial, when the judge who tried the cause, is not dissatisfied with the verdict. Cain v. Henderson, 2 Binn 108.
The authorities cited by the plaintiff do not at all militate against the case here referred to. The cases in 5 Mass. 353, and 7 Mass. 261, so far from being in favor of the plaintiff, we conceive to be directly against him, and do not at all contravene the principles of law as repeatedly decided by this court. The principle clearly established in these cases is, that where there is a contrariety of evidence, and the credibility of the witnesses is left to the jury, their decision will not be set aside.
The case in 2 Wend. 352, 356, sustains the defendants. The court there say:
The rule of law, in granting new trials in cases upon the verdict of the jury, is not based upon the ground that the evidence seems to preponderate in favor of the party applying for a new trial; but it must be decidedly so, and it is only in cases where the verdict has been given manifestly contrary to evidence, or where no evidence at all has been given to support the verdict, that a court will grant a new trial. Swain v. Hall, 2 Wills, 45.
The only questions to be settled in this case are, “Has there been a contrariety of testimony, and was the credibility of the witnesses, and the probability of their statements left to the jury?”
O. PETERS, on the same side: From the authorities above referred to, this rule may be deduced, as governing courts in granting or refusing a new trial, to wit: Where there is evidence on both sides fairly tending, or conducing to prove or disapprove the point in issue, the jury are to weigh the evidence, and the court will abide by, and sustain the verdict of the jury, whichever way it may be.
Adopting this rule as the correct one, the only question in this case would seem to be, whether there was evidence tending to prove, or fairly conducing to prove, that the property in controversy was not the property of the plaintiff, John K. Lowry, or that it was the property of Samuel Lowry. The question was one of fraud and the jury have passed upon it; for slight reasons the court will not disturb the verdict.
This was an action of trespass de bonis asportatis, commenced by the plaintiff in error, John K. Lowry, against Christopher Orr, sheriff of Peoria county, Isaac Underhill, Phineas S. Mulford, Isaac D. McComsey, John Armstrong, and James C. Armstrong, the defendants in error, at the April term of the Peoria circuit court, 1841, for taking and carrying away certain goods, wares and merchandise, chattels and effects, alleged to be the property of the plaintiff, and converting and disposing of them to their own use. The declaration is in the usual form, contains but one count, and concludes with an ad damnum of four thousand dollars.
To this declaration the defendants, Orr, Underhill, John Armstrong, James C. Armstrong and Mulford, on the 18th day of April, 1842, filed a special plea of justification, in substance, as follows: that the goods, wares, merchandise, chattels and effects mentioned in the plaintiff's declaration, were the property of Samuel Lowry, and not the property of the plaintiff; that on the 30th day of July, 1839, Phineas S. Mulford and Isaac D. McComsey recovered a judgment against Townsend Hills, John Armstrong and the said Samuel Lowry in the Peoria circuit court, for the sum of $1617.35 cents; that on the 16th day of March, 1841, the said Mulford and McComsey sued out a pluries fieri facias execution on said judgment, against the goods and chattels, lands and tenements of the said Hills, John Armstrong and Samuel Lowry; that said execution was on the 17th day of March, 1841, delivered to the defendant, Orr, as sheriff of Peoria county, to execute; that the said Orr, as such sheriff, on the 30th day of March, 1841, by virtue of said execution, seized, took and carried away, the goods, wares, merchandise, chattels, and effects, in the plaintiff's said declaration mentioned, as the property of the said Samuel Lowry, one of the defendants in the said execution named; and the said defendants, Underhill, Mulford, John Armstrong, and James C. Armstrong in the taking and carrying away of the property as aforesaid, acted as the servants, and by the command of the said Orr, so being sheriff as aforesaid, etc., with the usual verification, etc. To this plea there was a replication of traverse, by the said plaintiff to the country; and issue joined by the defendants. The cause was then submitted for trial by a jury.
The defendants then produced and gave in evidence the judgment and execution referred to in their said plea; it appearing by the indorsements on said execution that it was received by the sheriff on the 17th March, 1841, and levied on the property mentioned in the declaration on the 30th March, 1841. They then called Aquilla Wren as a witness, who testified that he had known Samuel Lowry for five or six years, and that he had a family and commenced merchandising in Peoria about the time of his first acquaintance with him; that he, witness, purchased out Lowry, Wade & Co., of Peoria, and went into...
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