Boys v. Bernhard Milling Co., 138 Ill. App. 88 (1907)

Dec. 7, 1907 · Illinois Appellate Court

138 Ill. App. 88

John W. Boys et al. v. Bernhard Milling Company.

1. Continuance—when action of court in denying motion for, not open to review. The action of the court in denying a motion for a continuance is not open to review where the motion for continuance and the affidavit filed in support thereof and the ruling of the court thereon are not incorporated in the bill of exceptions.

2. Evidence—when admission of erroneous, will not reverse. The admission of erroneous evidence will not reverse where the verdict is amply sustained by competent evidence in the record.

3. Instructions—when inaccuracies will not reverse. Erroneous instructions will not reverse where the verdict is amply sustained by competent evidence contained in the record.

Assumpsit. Appeal from the County Court of Shelby county; the Hon. Galvin Green, Judge, presiding.

Heard in this court at the May term, 1907.

Affirmed.

Opinion filed December 7, 1907.

W. H. Chew, W. H. Ragan and F. E. Latch, for appellants.

D. A. Milligan, for appellee.

Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment for $58.50 rendered by the County Court in favor of Bernhard Milling Co., and against J. A. Montgomery, John W. Boys and James M. Boys as co-partners. To reverse said judgment as to them this appeal is prosecuted by John W. Boys and James M. Boys who deny the existence of such partnership. The principal ground urged for reversal is the refusal of the trial court to grant a continuance of the cause upon the motion of appellants.

Neither the motion for continuance nor the affidavits filed in support of the same, nor the ruling of the court thereon, is incorporated in the bill of exceptions, and we are therefore precluded from considering the alleged error. St. L. Ry. Co. v. Union Bank, 209 Ill. 457; Lane v. City of Springfield, 120 Ill. App. 5.

It is also urged that the trial court erred in its rulings upon the evidence and instructions. No evidence was introduced by nor instructions offered in behalf of the defendants. While the record contains some incompetent evidence, there is ample competent evidence to sustain the. verdict. The instructions are subject to criticism but in view of the fact that the evidence so clearly shows a right of recovery, the inaccuracies in question could not have affected the verdict. Moreover, no objections or exceptions were made or taken to any rulings of the court upon either the evidence or instructions, and properly shown by the record.

The judgment is affirmed.

Affirmed.