City of Mt. Vernon v. Satterfield

53 Ill. App. 39, 1893 Ill. App. LEXIS 250

• Court: Appellate Court of Illinois
• Decided: March 23, 1894
• Status: Published

Opinion

Mr. Presiding Justice Sample

delivered the opinion of the Court.

The appellee recovered a judgment of $300 damages for an injury sustained by falling on a defective sidewalk. That the appellee was quite badly hurt is not disputed. That the walk was defective and had been so for such a length of time as to constitute notice to appellant, we think is clearly sustained by the evidence. The principal point made by appellant is chat the appellee did not exercise due care.

The court properly instructed the jury on this question, which found against the appellant.

The court and jury had the witnesses before them, and without the finding is clearly against the evidence, an appellate court is not disposed to disturb a verdict. In this case, however, we are precluded from a consideration of that question.

The record shows that a written motion for a new trial was not filed until the day after the record motion had been overruled. "Unless there is a motion for new trial and that motion is preserved in the bill of exceptions, and exception taken and preserved to the action of the court thereon, this court can not consider errors assigned that relate to the overruling of such motion. Dickhut v. Durrell, 11 Ill. 72; Boyle v. Levings, 28 Ill. 314; Graham et al. v. People, 115 Ill. 566.

The bill of exceptions shows that exception was taken to the judgment of the court on the verdict, but does not show that exception was taken to the action of the court in overruling the motion for a new trial. The judgment will be affirmed.