Smith v. Shultz

• Citation: 2 Ill. 490,1838 WL 2564,1 Scam. 490,32 Am.Dec. 33
• Parties: JAMES SMITH, plaintiff in error,v.JOHN SHULTZ, defendant in error.
• Decision Date: 31 December 1838
• Court: Supreme Court of Illinois

1 Scam. 490

2 Ill. 490

1838 WL 2564 (Ill.)

32 Am.Dec. 33

JAMES SMITH, plaintiff in error,

v.JOHN SHULTZ, defendant in error.

Supreme Court of Illinois.

December Term, 1838.

OPINION TEXT STARTS HERE

THIS cause was tried at the September term, 1837, of the Vermilion Circuit Court. A verdict for $400 was rendered for the defendant in error.

S. MCROBERTS and A. C. FRENCH, for the plaintiff in error.

BROWN and I. P. WALKER, for the defendant in error.

WILSON, Chief Justice, delivered the opinion of the Court:

This was an action on the case for slander. The plaintiff in the Court below sued the defendant for charging him with having stolen his corn and oats. The defendant pleaded not guilty, and gave notice under the statute, that on the trial of the cause he would prove that the plaintiff did take his corn and oats without his knowledge or consent; and also that he took it without his knowledge or consent, in the night time, and fed it to his hogs and horses.

Upon this plea and notice, the parties went to trial, and a verdict was found for the plaintiff. The defendant then moved the Court for a new trial, upon the ground of newly discovered evidence. The affidavit, which was made by the defendant, sets out that he believes that since the trial of the cause he has discovered that he can prove by Joshua Law and one other witness, that the plaintiff told one or both of them that he did take the corn of the defendant, without his knowledge or consent. The Court overruled the motion for a new trial, from which decision the defendant has taken this appeal. At common law, the decision of a court upon an application addressed to its discretion, can not be assigned for error, and such has been the uniform decision of this Court. But by an act of the legislature, this principle of law has been changed, and an appeal will now lie from the decision of a Court refusing an application for a new trial. The question then is, has the Court erred in the exercise of its legal discretion, in overruling the motion made in this case. This should be clearly made out, to warrant a reversal of its opinion, upon a point, in relation to which it has the best opportunity of forming a correct opinion. A court will not grant a new trial, when in its opinion, substantial justice has been done between the parties, though the law arising on the evidence would have justified a different result; nor will it, upon the application of the defendant, afford him an opportunity of introducing newly discovered testimony, which is not...