The Cairo v. Philip Easterly

• Citation: 89 Ill. 156,1878 WL 9992
• Parties: THE CAIRO AND ST. LOUIS RAILROAD COMPANY et al.v.PHILIP EASTERLY, Admr.
• Decision Date: 30 June 1878
• Court: Illinois Supreme Court

89 Ill. 156

1878 WL 9992 (Ill.)

THE CAIRO AND ST. LOUIS RAILROAD COMPANY et al.

v.PHILIP EASTERLY, Admr.

Supreme Court of Illinois.

June Term, 1878.

WRIT OF ERROR to the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Mr. W. S. SEARLS, and Mr. L. P. BUTLER, for the plaintiffs in error.

Messrs. MAYHAM & HILL, for the defendant in error.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by Jeremiah Callahan against the Cairo and St. Louis Railroad Company, and Henry R. Payson and Fred. E. Canda, partners, doing business under the firm name of H. R. Payson & Co.

In the declaration it is, in substance, averred, that on the first day of June, 1874, the Cairo and St. Louis Railroad Company, a body corporate, and Henry R. Payson and Fred. E. Canda, the defendants, became indebted to the plaintiff in the sum of $2000, for labor and services, for goods, wares and merchandise bargained and sold to defendants, at their request, for work and services done and materials furnished by plaintiff for defendants, for money laid out and expended by plaintiff for defendants, at their request, and for money due on an account stated between plaintiff and defendants. The declaration also alleged a promise to pay by the defendants, and the usual breach. Payson and Canda failed to plead, and a default was entered as to them. The Cairo and St. Louis Railroad Company pleaded to the declaration, and upon a trial judgment was rendered against all of the defendants for $840.11, the amount claimed to be due by plaintiff.

All the defendants join in the prosecution of this writ of error, and as we understand the argument, three grounds of reversal are relied upon: First, for the reason the court overruled a motion for a new trial; second, on the ground the court refused to rule plaintiff's attorney to produce on the trial a certain account, which showed the dates when plaintiff performed the labor sued for; third, for the reason a joint judgment was rendered against all the defendants, when the evidence fails to show any liability on the part of Payson and Canda.

The application for a new trial was based upon certain affidavits, filed with the motion, by which the defendants undertake to establish that the judgment was obtained by the false testimony and perjury of the plaintiff, and the consequent surprise of the defendant The Cairo and St. Louis Railroad Company.

We shall not undertake to pass upon the sufficiency of the affidavits, as they are no part of the record, and are not properly before us. If the counsel for defendant desired to rely upon the affidavits, he should have preserved them in the bill of exceptions. In this way they would properly have been brought before the court; but where an affidavit is filed with the papers in a case during the progress of a trial, it does not become a part of the record unless...