Stumps v. Kelley

Citation12 Peck 140,22 Ill. 140,1859 WL 6841
PartiesBARBARA STUMPS, Appellant,v.SUSANNA KELLEY, who sues by her next friend, Appellee.
Decision Date30 April 1859
CourtSupreme Court of Illinois

22 Ill. 140
1859 WL 6841 (Ill.)
12 Peck (IL) 140

BARBARA STUMPS, Appellant,
v.
SUSANNA KELLEY, who sues by her next friend, Appellee.

Supreme Court of Illinois.

April Term, 1859.


APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

It is not necessary that there should be a guardian, or prochein amy, for a minor at the time of suing out process. If it were otherwise, the exception should be taken before pleading to the merits.

A similiter may be put to a plea, at any stage, by any party; and it is not error to proceed to trial without it.

A judge may of his own motion instruct the jury, and it may often be his duty to do so.

The practice of instructing a jury to find for the defendant, as in case of a nonsuit, is not adopted in this State

The evidence is for the jury, and in case of contrariety, the Supreme Court will not interfere, except under peculiar circumstances.

A party will be liable for injuries inflicted by a cow or other animal, if the viciousness of the animal is known to the owner; and case, not trespass, is the proper remedy.

THIS case is fully stated in the opinion of the court. The cause was heard before J. M. WILSON, Judge, and a jury, and there was

[22 Ill. 141]

a finding and judgment for $500.00. The defendant below appealed.

HOSMER & PECK, for Appellant.

J. C. WICKER, for Appellee.

WALKER, J.

This was an action on the case brought in Cook County Court of Common Pleas to the September term, 1857, by appellee and against appellant. The first count of the declaration alleges, that appellant did, theretofore wrongfully and injuriously, keep a certain red and white cow, well knowing that the same was accustomed to hook, attack and push with her horns; that the cow did attack and push with her horns, the plaintiff, and greatly wounded, bruised and injured the shoulder and arm of the plaintiff, whereby she became sick, etc., for a long space of time, and was injured in consequence, in her health and constitution, and was prevented from pursuing her ordinary avocation, etc., and was put to great expense, etc., in being cured.

The second count is similar to the first, only it avers that defendant, knowing the vicious propensity of her cow, and that she was accustomed to hook mankind, did not restrain and confine her cow, but suffered her to run at large, and that the cow, on the eleventh day of August, 1857, attacked and hooked plaintiff, whereby she was greatly injured.

The defendant filed the plea of general issue, to which the similiter was added. At the...

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31 cases
  • Johnson v. Johnson
    • United States
    • United States Appellate Court of Illinois
    • 5 Noviembre 2008
    ... ... Stumps v. Kelley, 22 Ill. 140, 142-43 (1859) (common law case reciting the common law rule that "`the owner of domestic or other animals not naturally ... ...
  • Flansburg v. Basin
    • United States
    • United States Appellate Court of Illinois
    • 31 Diciembre 1878
    ... ... 401.The failure of plaintiff to exercise ordinary care, unless such failure contributed to the injury, will not prevent a recovery: Stumps v. Kelly, 22 Ill. 140; T. W. & W. R. R. Co. v. O'Connor, 77 Ill. 391; C. & A. R. R. Co. v. Mock, 72 Ill. 141; Centralia v. Scott, 59 Ill. 129; C. & ... ...
  • Linington v. Strong
    • United States
    • United States Appellate Court of Illinois
    • 31 Octubre 1880
    ... ... 176; Wheeler v. Curtis, 11 Wend. 654; Dearborn v. Kent, 14 Wend. 183.Joinder in demurrer is merely formal: Davis v. Ransom, 26 Ill. 100; Stumps v. Kelly, 22 Ill. 140; Nieman v. Wintker, 85 Ill. 468; Gillespie v. Smith, 29 Ill. 473; Hazen v. Pierson, 83 Ill. 241.A material fact alleged on one ... ...
  • Doe v. Barnett
    • United States
    • Indiana Appellate Court
    • 29 Octubre 1969
    ... ... R. Co. v. Walsh (1898), 78 Ill.App. 595; Eastman v. Scott (1902), 182 Mass. 192, 64 N.E. 968; Mareau v. Vanatta (1878), 88 Ill. 132; Stumps v. Kelley (1859), 22 Ill. 140; Moss v. Partridge (1881), 9 Ill.App. 490; McHugh v. Mayor, etc. (1898), 31 App.Div. 299, 52 N.Y.Supp. 623; Clowdis v ... ...
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