Pietsch v. Pietsch

• Decision Date: 29 June 1910
• Citation: 92 N.E. 325,245 Ill. 454
• Parties: PIETSCH v. PIETSCH et al.
• Court: Illinois Supreme Court

245 Ill. 454

92 N.E. 325

PIETSCH

v.PIETSCH et al.

Supreme Court of Illinois.

June 29, 1910.

Appeal from Appellate Court, First District, on Appeal from Municipal Court of Chicago; William N. Cottrell, Judge.

Action by Charles F. Pietsch against Otto E. Pietsch and another. From a judgment of the Appellate Court affirming a judgment for plaintiff, rendered on a directed verdict, defendants appeal, pursuant to a certificate of importance and an appeal granted by the Appellate Court. Reversed and remanded.

Edwin L. Harpham, Lambert Kaspers, and C. W. Greenfield, for appellants.

Henry R. Baldwin, for appellee.

CARTWRIGHT, J.

This is a suit in forcible detainer for the possession of a lot in Chicago, begun by Charles F. Pietsch, the appellee, by filing his complaint in the municipal court of Chicago against Otto E. Pietsch and Helen Pietsch, appellants. After a jury had been impaneled and sworn the attorney for plaintiff made an opening statement of the case to the jury to the effect that the defendants, who are husband and wife, had made a mortgage or trust deed on the lot, which was foreclosed; that a sale was made under the decree, from which there was no redemption; that a deed was made, in pursuance of the sale, to Charlotte L. Clark; that the property was bought from her by the plaintiff for $3,000 or $4,000 and a deed was made to him; that the defendants were in possession of the premises and refused to surrender possession after demand in writing; that the testimony might show there was some talk concerning an agreement that if the defendants would pay to the plaintiff the amount of money that was represented by his purchase of the property, with interest and costs, within a reasonable time, they might have the property and he would deed it to them; that if it should appear there was an agreement the plaintiff was still willing to perform it, but that he was claiming the possession of the property in the suit. An attorney for the defendants then stated to the jury, in substance, that the defendant Helen Pietsch, being the owner of the premises occupied by the defendants as their home, made a mortgage on the same, which was foreclosed; that about the time when the redemption would expire she went to the plaintiff, her brother-in-law, and wanted him to loan her the amount of the mortgage and permit her to remain there; that he let her have the money as a loan but said he would take the deed in his own name as security; that he put up something over $4,000; that the matter ran along and she paid him back $1,000 at one time, $150 at another, and afterward $200 more; that it ran along for three or four years afterward, and she had another piece of property upon which there was a mortgage of $8,800, and he said he would loan her enough money to take that in. The attorney for the plaintiff objected to the statement relating to other property, and the attorney for the defendants said that he wanted to state to the jury that the plaintiff got his money back by means of a mortgage upon the other piece of property and this one, but the court sustained the objection and an exception was taken to the ruling. Continuing, the attorney stated that the amount was $4,283.98 upon which payments had been made, and that it was agreed that Mrs. Pietsch should remain in possession of the premises and was entitled to remain there. The court then said, ‘I assume you have stated all of your defense,’ and the attorney replied, ‘Yes, sir,’ whereupon the court instructed the jury to return a verdict finding the defendants guilty of unlawfully withholding possession of the premises and that the right of possession was in the plaintiff. The jury returned a verdict accordingly, and the court, after overruling a motion for a new trial, entered judgment on the verdict. The Appellate Court for the First District affirmed the judgment and granted a certificate of importance and an appeal to this court.

When the jury had been sworn to try the issues and render a verdict according to the evidence, it was the privilegeof the attorney for each party, if he saw fit to do so, to make an opening statement of what he expected to prove. Such a statement is not intended to take the place of a declaration, complaint, or other pleading, either as a statement of a legal cause of action or a legal defense, but is intended to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. How full it shall be made, within reasonable limits, is left to the discretion of the attorney, but the only purpose is to give the jury an idea of the nature of the action and defense. To relate the testimony at length will not be tolerated. 1 Thompson on...