Schlencker v. Risley

• Decision Date: 31 December 1842
• Parties: Gideon Schlencker et al., appellants,v.Joshua Risley, appellee.
• Court: Illinois Supreme Court

3 Scam. 483

4 Ill. 483

1842 WL 3798 (Ill.)

38 Am.Dec. 100

Gideon Schlencker et al., appellants,

v.Joshua Risley, appellee.

Supreme Court of Illinois.

December Term, 1842.

Appeal from Wabash.

The general rule of law is, where an officer justifies the commission of an act complained of, which purported to be done in his official capacity, that it is necessary that he should show in his defense, not only that he was an acting officer, but also that he was an officer, duly commissioned and qualified to act as such; while, as to all others, it is sufficient for them to show that he was acting as such officer. ^a

A party can not assign for error an erroneous decision of the court which manifestly does him no injury.

The law intends that every one shall have a fair trial: and if, by any misfortune or accident, without any fault on his part, a party has been unable to present the merits of his case before the jury, as a general rule, the court will allow him another hearing, upon such terms as may be deemed equitable.

In some instances the granting or refusing a motion for a new trial is a matter of sound discretion with the judge; while, in others, the question must be determined by well known and firmly established principles of law.

Before a new trial can be granted on the ground of newly discovered evidence, it must appear that it is material to the issue; that it is not cumulative; and that the party has not been guilty of negligence in not discovering and producing it on the former trial. ^b

A new trial is never granted upon newly discovered evidence which can be received only in mitigation of damages; it is the effect that the evidence would have upon the issue alone, that entitles it to weight in determining the question.

A verdict is never disturbed on account of excessive damages, in cases of tort, unless it is probable, from the amount of the damages assessed, that the jury has acted under the influence of prejudice or passion. ^c

An objection to the form of a verdict, where it is substantially correct, can not be raised in the Supreme Court, where no exception is taken to it in the court below.

A new trial will not be granted upon newly discovered evidence of the existence of a fact which was fully established on the former trial.

This cause was heard in the court below at the September term, 1842, before the Hon. William Wilson and a jury. Verdict and judgment were rendered for the plaintiff for $333 damages. The defendants appealed to this court.

O. B. Ficklin, for the appellants, relied on the following points and authorities:

In order to prove the general allegation that two of the defendants were officers, it was only necessary to prove that they were acting as such. 2 Stark. Ev., 218; Turner v. Fendall, 1 Peters' Cond. R., 261; Berryman v. Wise, 4 Term R., 366; Potter v. Luther, 3 Johns., 431; Gale's Stat., 239; 2 Phillipp's Ev., Cowen & Hill's notes, 554, note 427. In no plea was it charged that the officers were qualified.

The distinction between the officers and other defendants, in the instruction of the court, was erroneous.

A. Lincoln, for the appellee:

If there is error in this case, it is damnum absque injuria. Justice has acquitted herself. He cited 3 N. Y. Dig., 590, sec. 83; 18 Johns., 205; 5 Wend., 48; 12 Wend., 27; 2 Harrison's Dig., 1521, current of decisions under head of Excessive Damages; 7 Mass., 205.

CATON, Justice, delivered the opinion of the court:

This was an action of trespass for false imprisonment, brought by Risley against Williams, Wallace, Schlencker, Fisher and Rogers, in the Wabash Circuit Court. Fisher was not served with process. Williams justified issuing the process on which the plaintiff was arrested, as an acting justice of the peace, on a proper complaint made. Wallace justified the arrest of the plaintiff by virtue of said process, as an acting constable, etc. Schlencker justified as one of the posse in aid of Wallace, and at his command. Rogers pleaded not guilty. Issues were taken on these pleas. On the trial, the defendants offered to prove, in their defense, by general reputation, that Williams was a justice of the peace at the time of issuing the warrant, and that Wallace was a constable, acting within the county. The court decided that this evidence was competent as to Williams and Wallace, only in mitigation of damages; but as to the other defendants, it was competent evidence in their defense. After this decision, Williams produced his commission as a justice of the peace, and Wallace produced a certificate of the county commissioners' clerk, stating that he was duly appointed and qualified as constable. It also appears, from the bill of exceptions, that it was proved on the trial, that Wallace, professing to act as constable, and Schlencker in aid of him, arrested the plaintiff. The jury found a verdict of guilty against Wallace and Schlencker, and not guilty as to the other defendants, and assessed the plaintiff's damages at $333.

After the verdict was rendered, the defendants Wallace and Schlencker moved the court for a new trial, upon the affidavit of Schlencker, stating that he was summoned by Wallace, whom he supposed was a legal constable, to aid him in arresting Risley, and that he objected to going, and offered Wallace a dollar to let him off, but that Wallace refused, and threatened him with the law, if he did not go. That deponent was ignorant of the law, and unable to read English, and that, fearing the consequences of the threat, he went with Wallace, and that all he did was in obedience to his commands. That since the trial, deponent has discovered, by conversations with Mary Wise, that she was present when Wallace called on Schlencker and commanded his assistance; and that he can prove by her what took place at the time, between Wallace and deponent, as above stated. The court overruled the motion for a new trial, and gave judgment on the verdict. The defendants have appealed to this court, and now assign the decision of the court in relation to the evidence offered, to prove, by general reputation, that Williams was a justice, and Wallace a constable; the decision of the court in overruling the motion for a new trial, and rendering judgment on the verdict.

The first question proper to be considered is, the decision of the court in refusing to allow the evidence of general reputation to prove the official character of the justice and constable, except for the limited purpose specified.

The general rule of law is, when an officer justifies an act complained of, purporting to be done in his official capacity, that it is necessary that he should aver and prove, in his defense, not only that he was an acting officer, but that he was an officer in truth and right, duly commissioned and qualified to act as such; while as to all others, it is sufficient for them to aver and prove that he was acting as such officer. And the reason of the rule is, that the officer himself is bound to know whether he is legally an officer, and if he attempts to exercise the duties of an officer, without authority, he acts at his peril; whereas it is sufficient, so far as the rights of third persons or the public are concerned, that the officer is acting in his official capacity, and under color of title; for it would be unreasonable and oppressive to compel them, before they put faith in his official acts, to go into a minute examination of all of the evidence of his title to the office, and see that he has complied with all the necessary forms of law.¹ But it is said by the counsel for the appellants, and perhaps with justice, that as Williams and Wallace only pleaded that they were officers de facto, upon which the plaintiff took issue, they should not have been called upon to prove any more than was sufficient to maintain that issue; that if the plaintiff had doubted their rights to the offices, the duties of which they attempted to exercise, he should have demurred to the defendants' pleas, and thus compelled them to have averred and proved that they were officers de jure. All this may be admitted to be true, and it may also be admitted that the court erred in the limitation given to this evidence; but as it appears, from the bill of exceptions, that upon this decision of the court, Williams produced his commission as justice, and Wallace produced a certificate of the county commissioners' clerk, that he had been appointed a constable and had qualified as such, and no objection having been made to this evidence to prove their rights to the respective offices, and no objection appearing to have been made to their legal qualification to those offices, it is manifest, beyond all doubt, that this decision of the court could not have prejudiced them in the least in the final result of the trial. For this reason, then, we are of opinion that the plaintiffs here can not prevail on this error.

The motion for a new trial was founded principally on the affidavit of Schlencker, of material evidence discovered subsequent to the trial. The law intends that every one shall have a fair trial; and if, by any misfortune or accident, without any fault on his part, a party has been unable to present the merits of his case before the jury, as a general rule, the court will allow him another hearing, upon such terms as may be deemed equitable. In some instances the granting or refusing a motion for a new trial, is a matter of sound discretion with the judge, while in others, the question must be determined by well known and firmly established principles of law. Before a new trial can be granted on the ground of newly discovered evidence, it must appear that the evidence shown...