Penn v. Oglesby
| Decision Date | 30 June 1878 |
| Citation | 1878 WL 9975,89 Ill. 110 |
| Parties | JOSEPH PENN, Admr. etc.v.STEPHEN E. OGLESBY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Mr. JAMES M. DILL, and Mr. WM. C. KUEFFNER, for the appellant.
Messrs. GILLESPIE & HAPPY, for the appellee.
It appears that appellee and his father, in his lifetime, for a period of ten years or more, had dealings and transactions to a large amount. The father loaned money to and paid debts for the son to a large amount, and the son placed grain and other property in the hands of his father for sale, which was, we presume, to be credited to appellee on what he owed the father. The property was sold, and, as is usual in such transactions, it does not very definitely appear what sum was realized. On the other hand, the notes given by appellee to the father fix the amount due the father more definitely. On the death of the father, appellee presented his claim, in the county court, against the estate.
A trial in that court resulted in favor of the estate for the sum of $3062.54. The case was appealed to the circuit court by claimant. A trial was had in the latter named court, at the September term, 1876, when the jury found in favor of the estate, and fixed the amount at $1727.80. Appellant moved for a new trial, and appellee confessed the grounds, and the verdict was set aside, and a new trial had at the April term, 1877, when the jury found a verdict in favor of the estate for $1129.48. A motion for a new trial was entered and overruled, and the administrator appeals.
This record presents the anomaly of a motion for a new trial being overruled pro forma. The responsibility of passing upon and deciding a motion for a new trial is upon the circuit judge, and should not be cast upon this court in the first instance. We do not see and hear the witnesses testify, as does the circuit judge, and hence we can not feel sure that we can place a fair estimate on the evidence, whilst the circuit judge can, from his superior advantages, feel sure in his determination that he is acting in the promotion of justice. The parties have a right to the decision of the judge on this as upon the questions of evidence, the giving or refusing instructions or the decision of a case submitted to him for trial. To decide any of these questions pro forma would create, to say the least, surprise in the minds of the profession, and in principle no distinction is seen between such cases and the present. It is a practice that almost compels parties to seek a decision in an appellate court, when they have the right to the decision of the judge trying the case. Such a practice should not be indulged.
After a careful...
To continue reading
Request your trial
-
State v. Muldoon
...to overrule a motion for a new trial pro forma and without proper consideration. 29 Cyc. 1006; Campbell v. Ayres, 4 Iowa, 358; Penn v. Oglesby, 89 Ill. 110; parte Russell, 13 Wall. 664; McIntyre v. McIntyre (Ga.) 47 S.E. 501; Richolson v. Freeman, 56 Kan. 463; Larabee v. Hall, 50 Kan. 311; ......
-
Williams v. Swango
...in this state that courts may act upon the admission of a decedent when a question of the intention of such decedent is involved. Penn v. Oglesby, 89 Ill. 110. This statement not only amounts to an admission on the part of Ann M. Williams, but indicates her own construction of what she mean......
-
Lovell v. Divine
...to that court for a new trial.Mr. FRANK E. STEVENS, for plaintiffs in error; that rulings pro forma should not be indulged, cited Penn v. Oglesby, 89 Ill. 110. Appeals to circuit court allowed from all judgments, etc., of county court in matters relating to administration of estates: R. S. ......
-
Mcreynolds v. the Burlington
...motion for a new trial, against the objection of appellants, after the same had been confessed, and consented to by appellants. Penn v. Oglesby, 89 Ill. 110. Mr. R. B. SHIRLEY, for the appellee: The testimony as to the damages amounts to nothing but the opinions of witnesses, and the jury w......