Slayden-Kirksey Woolen Mills v. Picker

Appellate Court of Illinois

Slayden-Kirksey Woolen Mills v. Picker

130 Ill. App. 355, 1906 Ill. App. LEXIS 633

DecidedNovember 27, 1906

StatusPublished

This text of 130 Ill. App. 355 (Slayden-Kirksey Woolen Mills v. Picker) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Slayden-Kirksey Woolen Mills v. Picker, 130 Ill. App. 355, 1906 Ill. App. LEXIS 633 (Ill. Ct. App. 1906).

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Opinion

Mr. Justice Puterbaugh

delivered the opinion of the court.

This action was originally brought by the appellant corporation in a justice’s court, for the recovery of the sum of $40.75, alleged to be due appellant from appellee for goods sold and delivered. At the time of bringing the suit the plaintiff filed in the justice’s court an affidavit in support of its claim. Judgment was there rendered ‘in favor of the defendant. The plaintiff then appealed to the Circuit Court where, upon trial by jury, judgment was again rendered for the defendant, to reverse which the plaintiff now appeals to this court.

When the case was called for trial in the Circuit Court, appellant filed a motion for a continuance because of the absence of one Wilson, who, it was alleged# was a necessary and material witness for the plaintiff. The court overruled the motion and the 'trial was begun. After the jury had been empaneled, counsel for plaintiff moved for a default and judgment for the amount- shown to he due to it by the affidavit filed with the justice, upon the ground that no affidavit of merits had been filed. This motion was also overruled, and the defendant, by leave of court, then filed an affidavit of merits as to the whole of the plaintiff’s demand. The only assignments of error argued are that the court erred in overruling the motions referred to, that the judgment was manifestly • against the' weight of the evidence, and that the. trial court made improper remarks in the presence of the jury, prejudicial to the plaintiff.

The motion for a continuance of the cause was properly overruled for the reason that the affidavit filed in support thereof failed to show due diligence on the part of the plaintiff to secure the attendance of the witness in question.

The motion for a default and judgment was also properly overruled for the reason that written pleadings are not required before a justice, and there was, therefore, no plea to be supported thereby. While the trial on an appeal is de novo, the rule referred to also applies in the Circuit Court. Furness v. Helm, 54 App. 435.

A perusal of the record fails to satisfy us that the verdict was so manifestly contrary to the evidence as to warrant a reversal of the judgment for that reason. We cannot say that the remarks of the court of which complaint is made were improper. The same may be said as to the remarks of counsel for defendant.

The judgment of the Circuit Court is affirmed.

Affirmed.

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Mr. Justice Puterbaugh

delivered the opinion of the court.

This action was originally brought by the appellant corporation in a justice’s court, for the recovery of the sum of $40.75, alleged to be due appellant from appellee for goods sold and delivered. At the time of bringing the suit the plaintiff filed in the justice’s court an affidavit in support of its claim. Judgment was there rendered ‘in favor of the defendant. The plaintiff then appealed to the Circuit Court where, upon trial by jury, judgment was again rendered for the defendant, to reverse which the plaintiff now appeals to this court.

When the case was called for trial in the Circuit Court, appellant filed a motion for a continuance because of the absence of one Wilson, who, it was alleged# was a necessary and material witness for the plaintiff. The court overruled the motion and the 'trial was begun. After the jury had been empaneled, counsel for plaintiff moved for a default and judgment for the amount- shown to he due to it by the affidavit filed with the justice, upon the ground that no affidavit of merits had been filed. This motion was also overruled, and the defendant, by leave of court, then filed an affidavit of merits as to the whole of the plaintiff’s demand. The only assignments of error argued are that the court erred in overruling the motions referred to, that the judgment was manifestly • against the' weight of the evidence, and that the. trial court made improper remarks in the presence of the jury, prejudicial to the plaintiff.

The motion for a continuance of the cause was properly overruled for the reason that the affidavit filed in support thereof failed to show due diligence on the part of the plaintiff to secure the attendance of the witness in question.

The motion for a default and judgment was also properly overruled for the reason that written pleadings are not required before a justice, and there was, therefore, no plea to be supported thereby. While the trial on an appeal is de novo, the rule referred to also applies in the Circuit Court. Furness v. Helm, 54 App. 435.

A perusal of the record fails to satisfy us that the verdict was so manifestly contrary to the evidence as to warrant a reversal of the judgment for that reason. We cannot say that the remarks of the court of which complaint is made were improper. The same may be said as to the remarks of counsel for defendant.

The judgment of the Circuit Court is affirmed.

Affirmed.

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130 Ill. App. 355, 1906 Ill. App. LEXIS 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slayden-kirksey-woolen-mills-v-picker-illappct-1906.