The Knickerbocker Ins. Co. v. Tolman

• Decision Date: 30 September 1875
• Citation: 1875 WL 8718,80 Ill. 106
• Parties: THE KNICKERBOCKER INSURANCE COMPANYv.SAMUEL A. TOLMAN et al.
• Court: Illinois Supreme Court

80 Ill. 106

1875 WL 8718 (Ill.)

THE KNICKERBOCKER INSURANCE COMPANY

v.SAMUEL A. TOLMAN et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding. Mr. ALLAN C. STORY, and Mr. RUFUS KING, for the appellant.

Mr. JOHN VAN ARMAN, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellees obtained a policy of insurance from appellant, to the amount of $25,000, on a large “stock of drugs, liquors, paints, oils, dye stuffs and such other articles as are usually kept by wholesale druggists, contained in a certain brick building known as No. 35 South Water street, Chicago.” The loss occurred by fire during the life of the policy. Appellant refusing to make payment on the loss, appellees brought an action of assumpsit on the policy. The plea of the general issue was filed, with special pleas, and a trial was had, resulting in a verdict and judgment against the defendant, and it appeals.

It is first urged that the court below erred in refusing a change of venue, on the application of appellant. The petition was based on the ground of the prejudice of the inhabitants of Cook county. On turning to the petition and notice, we find that they are strictly in conformity to the requirements of the statute, and, inasmuch as the granting of a change of venue in civil cases is not discretionary, the court below erred in not allowing the motion. This is the requirement of the statute, and such has been the uniform construction given to it. Barrows v. The People, 11 Ill. 121; Commercial Ins. Co. v. Mehlman, 48 Ill. 316, and other cases in our reports.

It is insisted that the defense has no merit, but is purely technical. This may all be true, but still it is a right that is secured to the party by an express provision of the statute, and must be obeyed. All know that the courts have no power to repeal, modify or even mitigate any requirement of the statute. If a reversal in this case works a hardship, appellees should have permitted the change of venue to be made without opposition. They saw the petition and notice, and must have known that they were strictly in conformity to the statute, and entitled appellant to a change of venue. Hence they have contributed to produce the hardship of which they now complain. Counsel must have known that it was error to refuse the motion, and hence should have yielded to the change of venue, but, failing to do so, he can not urge us to relieve him against the error he has procured in the record. If the statute is harsh, or if it works hardship, the remedy is in the hands of the General Assembly, and not in either of the other departments of the government.

It is urged that the declaration does not aver the value of the property destroyed. It avers that appellees were interested in the property to the value of $5000. This averment is made under a videlicit, and is certainly good on general demurrer, or in arrest of judgment, although it might have...