Williams v. Bishop

• Decision Date: 30 June 1854
• Citation: 5 Peck 553,15 Ill. 553,1854 WL 4735
• Parties: JOSEPH R. WILLIAMSv.ALMET E. BISHOP et al.
• Court: Illinois Supreme Court

15 Ill. 553
1854 WL 4735 (Ill.)
5 Peck (IL) 553

JOSEPH R. WILLIAMS
v.
ALMET E. BISHOP et al.

Supreme Court of Illinois.

June Term, 1854.

THIS decree was ordered by J. G. WILSON, judge, at the December special term of the Boone circuit court.

S. A. HURLBUT, for appellant.W. T. BURGESS, for appellees.

SCATES, J.

Defendants filed this bill to redeem a mortgage on two lots in Belvidere, in which they allege that E. D. Bishop, their ancestor, executed a deed of conveyance, absolute upon its face, to plaintiff, and took a title bond reciting a resale to him, and upon payment of a certain sum that plaintiff should convey the premises. Plaintiff answered, denying that the conveyance and bond were given as a mortgage, but that the conveyance was absolute, and that the bond was for a distinct, separate sale by plaintiff to E. D. Bishop, and that there was no loan of money. A replication was filed, and the parties stood at issue upon the fact whether these transactions amounted to a mortgage.

To aid in the determination of this question, a feigned issue

[15 Ill. 554]

was made of this fact, and sent to a court of law for trial. A jury was impaneled, who found the issue in favor of the defendant; and this verdict, with the evidence before the jury on the trial, were returned into the court of chancery without any accompanying certificate from the judge of the court of law whether he was satisfied with the trial and verdict. A motion was made for a new trial before the chancellor, on the grounds of improper instructions, newly discovered evidence, and that the finding was contrary to the weight of evidence. This motion was denied, and a final decree rendered in accordance with the finding, upon the evidence in the cause.

This cause is brought here by appeal, and the denial of this motion, as also the finding of the court, and the rendition of the final decree, are assigned for error, together with another, that there was no order of the court directing the feigned issue, and that the court had, without such order, considered the finding of the jury under the feigned issue.

It is too late to object on error here for want of a formal entry of an order directing a feigned issue to the inspection and consideration of the verdict upon it. The plaintiff made it up and signed it by counsel, appeared in the court of law and examined and cross-examined the witnesses, asked instructions, and, after the return of the verdict here, made and was heard upon a motion for another trial, and...