Shoaff v. Funk

• Decision Date: 19 October 1899
• Citation: 182 Ill. 224,54 N.E. 969
• Parties: SHOAFF v. FUNK.
• Court: Illinois Supreme Court

182 Ill. 224

54 N.E. 969

SHOAFF

v.FUNK.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, Third district.

Action by Henry S. Funk against Thomas B. Shoaff. From a judgment of the appellate court affirming a judgment for plaintiff (73 Ill. App. 550), defendant appeals. Affirmed.

Cartwright, C. J., dissenting.

Salmons & Draper and Tilton & Cundiff, for appellant.

Penwell & Lindley, for appellee.

PER CURIAM.

In deciding this case, the appellate court delivered the following opinion:

‘Appellee brought this suit in the circuit court of Vermilion county against appellant, charging him with slander. The slanderous charges were that on April 1, 1897, appellant said of and concerning appellee that ‘he (appellee) was a damned thief, and he (appellant) could prove it, and he (appellant) would have him (appellee) in the penitentiary.’ ‘You (appellee) are a damned thief.’ ‘You (appellee) are a damned thief, and I (appellant) can prove it.’ ‘You (appellee) are a thief, and ought to be in the penitentiary.’ ‘You (appellee) are a damned thief, and I (appellant) can prove it, and I (appellant) will get you (appellee) in the penitentiary.’ ‘You (appellee) are a thief.’ Appellant pleaded the general issue, which put in issue all the material facts alleged by appellee in his declaration. There was in the court below a trial by jury, and a verdict returned for appellee for $2,500. Appellant then moved for a new trial, assigning numerous errors, calling in question various rulings of the trial court on the admission and exclusion of evidence, the giving and refusing of instructions, and complaining that the verdict was contrary to the evidence, and the damages excessive.

‘The bill of exceptions in this cause contains the following: ‘Upon the argument of the defendant for a new trial of said cause, the lawyer for the defendant stated to the court that the defendant had filed in this cause the usual grounds for a new trial, but that he had no criticism to make or fault to find with the rulings of the court in the admission or exclusion of evidence nor in the giving or refusing of instructions; that he only relied on two grounds for a new trial,-that is to say, that the evidence did not warrant the finding of the jury for the plaintiff, and that the damages were excessive. Therefore the court, passing upon the motion for a new trial, only considered the two propositions argued by counsel for the defendant, and afterwards, on, to wit, the 6th day of August, A. D. 1897, it being of the regular days of said term of said court, in passing upon said defendant's motion for a new trial of said cause, the court held that the damages were excessive, and that unless a remittitur was entered by the plaintiff for $1,250 a new trial would be granted. Thereupon counsel for plaintiff entered a remittitur of $1,250, and the court thereupon overruled the said motion of defendant for a...