Starnes v. Dering Coal Co., 147 Ill. App. 75 (1909)

March 4, 1909 · Illinois Appellate Court

147 Ill. App. 75

James S. Starnes, Administrator, Plaintiff in Error, v. Dering Coal Company, Defendant in Error.

Appeals and errors—when no questions preserved for review. In an action for personal injuries where a peremptory instruction has been given for the defendant, held, that under the assignment of errors in this case, nothing is preserved for review where it did not appear from the record that a motion for a new trial was made or that an exception was preserved to the court’s ruling in allowing the motion for the peremptory instruction or to the rendering of judgment.

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Franklin county; the Hon. Prince A. Pearce, Judge, presiding.

Heard in this court at the February term, 1908.

Affirmed.

Opinion filed March 4, 1909.

Webb & Webb, for plaintiff in error.

Denison & Spiller, for defendant in error; W. H. Hart, of counsel.

Mb. Pbesiding Justice Myebs

delivered the opinion of the court.

This was an action in case, brought by the plaintiff' in error against the defendant in error to recover damages for injuries, causing death of plaintiff’s husband. The declaration is in three counts, to which the defendant filed a plea of not guilty. The case was tried by jury, and at the. close of all the plaintiff’s evidence, a motion was made by the defendant to instruct the jury to find the defendant not guilty on each count of the declaration. This motion was allowed, the jury was instructed accordingly, and returned a verdict finding the defendant not guilty. Thereupon the court rendered judgment on the verdict, and plaintiff appealed, assigning as error the action of the trial court in instructing the jury to find the defendant not guilty and in rendering judgment on the verdict.

It does not appear from the record that a motion for new trial was made or that an exception was preserved to the court’s ruling in allowing the motion for the peremptory instruction, or to the rendering of judgment. In this condition of the record there is nothing before this court for review under the assignment of errors attached. Elliott v. Egyptian Power Co., 128 Ill. App. 159, and cases cited; Vogelsang v. Fredkyn, 133 Ill. App. 356; Derby v. Peterson, 128 Ill. App. 494.

The judgment of the Circuit Court will therefore be affirmed.

Affirmed.