Thomas Pressed Brick Co. v. Herter

• Citation: 44 N.E. 380,162 Ill. 46
• Parties: THOMAS PRESSED BRICK CO. v. HERTER.
• Decision Date: 11 June 1896
• Court: Illinois Supreme Court

162 Ill. 46

44 N.E. 380

THOMAS PRESSED BRICK CO.

v.HERTER.

Supreme Court of Illinois.

June 11, 1896.

Appeal from appellate court, Third district.

Trespass by John A. Herter against the Thomas Pressed Brick Company. A judgment for plaintiff was affirmed by the appellate court (60 Ill. App. 58), and defendant appeals. Affirmed.J. F. Greathouse, for appellant.

T. J. Selby and F. A. Whiteside, for appellee.

Defendant in error (plaintiff below) brought suit against the Thomas Pressed Brick Company in the circuit court of Calhoun county in an action of trespass, and a trial before a jury resulted in a verdict of guilty, assessing plaintiff's damages at $2,455. Plaintiff having remitted $955 of this amount, the circuit court rendered judgment against the defendant company on this verdict of $1,500, from which judgment the company appealed to the appellate court for the Third district, by whom this judgment was afterwards in all respects affirmed, and to review that decision of the appellate court the defendant company now prosecutes this writ of error. No ruling or decision of the trial court, except in overruling the motion for a new trial and rendering judgment on the verdict, is cited or relied on by plaintiff in error to secure a reversal of this judgment; the only contentions in this court being (1) that the company was not guilty; (2) that the trespasses were not committed within five years prior to the institution of this suit, and (3) that the damages are excessive.

PHILLIPS, J. (after stating the facts).

By the eighty-ninth section of the practice act this court can re-examine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error seeking to call in question the determination of the trial or appellate court upon controverted questions of fact can be considered, except in cases enumerated in section 88. Whether the defendant was guilty as alleged in the declaration, whether the trespasses were committed more than five years before the institution of suit, and whether the damage was excessive, are all questions of fact. Fitch v. Johnson, 104 Ill. 111;Kreigh v. Sherman, 105 Ill. 49; Capen v. Glass Co., Id. 185; Steinman v. Steinman, Id. 348; Railroad Co. v. Morgenstern, 106 Ill. 216;Richards v. People, 100 Ill. 390;Board of Education v. Bolton, 104 Ill. 220;Legnard v. Rhoades, 156 Ill. 431, 40 N. E. 964;Stumer v. Pitchman, 124 Ill. 250, 15 N. E. 757; Railroad Co. v. Eldridge, 151 Ill....