The Ottawa v. Mcmath
| Decision Date | 30 September 1878 |
| Citation | 1878 WL 10238,91 Ill. 104 |
| Parties | THE OTTAWA, OSWEGO AND FOX RIVER VALLEY R. R. CO.v.SAMUEL MCMATH. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Appellate Court of the Second District; the Hon. JOSEPH SIBLEY, presiding Justice, and the Hon. EDWIN S. LELAND and Hon. N. J. PILLSBURY, Justices.
This was an action of assumpsit, brought by plaintiff in error, against defendant in error, in the circuit court of LaSalle county. The amount involved exceeded $1000. The declaration contained several counts upon a written contract. To the declaration there were filed the plea of the general issue, and also a plea verified by affidavit, denying the execution of the contract, upon both of which pleas issue was joined and a trial had, resulting in a verdict and judgment in favor of the defendant, from which the plaintiff appealed to the Appellate Court of the Second District.
In the Appellate Court the following errors were assigned upon the record, and none other:
“1. The court erred in admitting improper testimony offered by defendant.
2. The court erred in admitting improper testimony against the objection of plaintiff.
3. The court erred in refusing to admit competent evidence offered by plaintiff.
4. The court erred in overruling the motion of plaintiff for a new trial.
5. The verdict of the jury is manifestly against the law and the evidence.”
The bill of exceptions as contained in the circuit court record purported to contain all the evidence and the instructions given and refused upon the trial, and showed that the plaintiff, upon the trial in the circuit court, introduced evidence tending to prove the issues on its part, and the defendant introduced evidence tending to prove the issues on his part; that upon the rendition of the verdict by the jury, the plaintiff moved the court to set aside the verdict and grant a new trial, but the court overruled the motion and rendered judgment upon the verdict against the plaintiff, to which ruling of the court, in overruling its motion to set aside the verdict and grant a new trial, and in rendering judgment against it on the verdict, the plaintiff then and there excepted.
There was no statement in the bill of exceptions that the plaintiff had filed in the court below its points in writing particularly specifying the grounds of its motion for a new trial, nor did the record in said cause contain said points in writing, or any statement whatever in regard thereto.
It appeared from the record, however, that the motion for a new trial was made July 17, 1877, and was not overruled, nor was judgment rendered on the verdict until July 28, 1877, and after the court had heard the arguments of counsel thereon.
The Appellate Court examined the record upon the 1st, 2d and 3d assignments of error, and finding no error under those assignments, affirmed the judgment of the circuit court, but declined to investigate or decide the questions raised by the 4th and 5th assignments of error, for the reason that the bill of exceptions did not show that the plaintiff had filed in the circuit court any points in writing particularly specifying the grounds of its motion for a new trial.
The bill of exceptions, however, showed that exceptions were duly taken by the plaintiff to the giving of each and every one of the defendant's instructions, and to the overruling of the motion for a new trial.
Upon the record of the Appellate Court, brought to this court by writ of error, the following errors are assigned:
“1. The Appellate Court erred in refusing to decide whether the verdict was contrary to the law and the evidence.
2. The Appellate Court erred in refusing to decide the questions raised by the 4th and 5th assignments of error.
3. The Appellate Court erred in refusing to decide whether the circuit court erred in giving instructions on the part of the defendant.
Mr. EDWIN S. LEWIS, and Mr. H. T. GILBERT, for the plaintiff in error.
Mr. D. P. JONES, for the defendant in error.
It appears from the certified statement of facts from the Appellate Court, that court affirmed the judgment of the circuit court in this case, but declined to investigate or decide the questions raised by the 4th and 5th assignments of error as assigned in said Appellate Court, for the reason the bill of exceptions did not show the plaintiff had filed, in the circuit court, any points in writing particularly specifying the grounds of its motion for a new trial. Said assignments of error were that the circuit court erred in overruling the motion of plaintiff for a new trial, and that the verdict of the jury was manifestly against the law and the evidence.
Section 24 of chapter 83, Rev. Stat. 1845, provided: “If either party may wish to except to the verdict, or, for other causes, to move for a new trial, he shall, before final judgment be entered, give, by himself or counsel, to the opposite party or his counsel, the points in writing, particularly specifying the grounds of such motion, and shall also furnish the judge with a copy of the same, and final judgment shall thereupon be stayed until such motion can be heard by the court.”
In none of the cases which arose while said section 24 was in force was the question directly raised in this court, whether we would examine as to the verdict of the jury being against the law and the evidence, where the bill of exceptions failed to show the points in writing specifying the grounds of the motion had been furnished the opposite party or counsel and the judge. In all such cases it seems to have been assumed, both by the court and by counsel, that the points in writing, if not furnished or called for in the court below, were waived. It was uniformly held, however, that if the bill of exceptions did not show a motion for a new trial had been made and overruled, and an exception taken, the court would not investigate whether the evidence sustained the verdict.
In Boyle v. Levings, 28 Ill. 316, it was said:
In Gill v. The People, 42 Ill. 323, it was said: “There is, indeed, an entry by the clerk, showing a motion for a new trial was made and overruled, but this motion, and the action of the court upon it, should have been preserved in a bill of exceptions in order to be reviewed in this court.” And in the same case it was further said: “This record, then, furnishes us no evidence, of which we can take notice, that a motion for a new trial was made.”
The statute required, not that a copy of the motion itself should be given to the judge and opposite counsel, but “the points in writing particularly specifying the grounds of such motion,” and these cases, and many others that might be cited, plainly intimate that if it had been shown by the bill of exceptions a motion for a new trial had been made and overruled and an exception taken, then this court would have examined whether the verdict was sustained by the evidence.
The section of the statute referred to was amended in the Practice act of 1872, and is now found as section 57 of chapter 110, Rev. Stat. 1874, and provides: “If either party may wish to except to the verdict, or, for other causes, to move for a new trial, he shall, before final judgment be entered, or during the term it is entered, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion, and final judgment shall thereupon be stayed until such motion can be heard by the court.”
Under this amended statute only one copy of the reasons for a new trial is required, and that is to be filed with the papers, so that both court and counsel may have access to it. One copy on file accomplishes all and more than was accomplished by the two copies required before the amendment, as no provision was made by the former statute for either the filing or retention, by the mover, of a copy of the points. The only other change made by the amendment is the provision that the points in writing may be filed during the term the final judgment is entered, and this change was undoubtedly made for the reason this court had held the motion for a new trial might be made at any time...
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