Reichert v. Missouri & Illinois Coal Co., 147 Ill. App. 140 (1909)

March 4, 1909 · Illinois Appellate Court

147 Ill. App. 140

William J. Reichert et al., Appellees, v. Missouri & Illinois Coal Company, Appellant.

Evidence—when complaint cannot be made of absence of. The absence of material evidence cannot be made the subject of complaint upon appeal where such absence was due to the objections sustained at the instance of complaining party.

Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.

Heard in this court at the August term, 1908.

Affirmed.

Opinion filed March 4, 1909.

L. P. Grigler, J. B. McMurdo and U. C. Lyrla, for appellant.

Dill & Pfingsten, Schaefer, Parmer & Kruger and L. D. Turner, for appellee.

Mr. Presiding Justice Myers

delivered the opinion of the court.

We adopt appellant’s statement of the case. “This is a motion filed in the Circuit Court of St. Clair county, June 15, 1908, to quash an execution and retax the costs in the above entitled case, the execution purporting to have been issued out of the office of the clerk of the Circuit Court on June 11,1908. The main ground relied upon for the quashing of the execution is that said execution is unwarranted, illegal and contrary to law for the reason that it shows upon its face that it had been altered by a change in the date of the same. The grounds relied upon for retaxing the costs in the case are that said execution includes items of costs in the case that are illegal and should not be assessed against the defendant, and that after the trial of the case in the Circuit Court, a new party was added to the judgment.”

Upon hearing the court denied the motion and by appeal appellant seeks to reverse that order. The ground relied upon for a reversal, the only objection which is now made to the execution, viz.: that it shows upon its face an alteration in date, was not included in the grounds set forth in the written motion filed in the trial court, nor does the objection, specifically stated, appear in the assignment of errors. It appears, however, that in the hearing before the Circuit Court, the appellee offered evidence in explanation of the apparent change of date in the execution. The appellant objected to this evidence and the court sustained the objection for the reason, as stated, that the proposed evidence was not relevant under the issues made by the motion, the change in date not being included in the grounds set out in the motion-. The apparent change in the date of the execution was subject to explanation by evidence, which appellee offered and which was excluded on objection of appellant. By this objection to evidence and acceptance of the court’s ruling, and the reasons therefor, the appellant has waived any right to have the question of alteration in the execution considered on appeal. The court did not commit reversible error in refusing to retax the costs.

The judgment will be affirmed.

Affirmed.