Shreffler v. Fuller, 208 Ill. App. 630 (1918)

Feb. 12, 1918 · Illinois Appellate Court · Gen. No. 6,469

208 Ill. App. 630

James C. Shreffler, Appellee, v. Cora Fuller, Appellant.

Gen. No. 6,469.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal and ebbob, § 864 ^* —what is duty of appellant as to filing abstract. It is the duty of an appellant to file an abstract showing the matters on which he relies for a reversal of the judgment.

2. Appeal and ebbob, § 894*—what is right of appellee as to filing additional abstract. The appellee has the right to file an additional abstract, but is under no duty to make it full and complete.

3. Appeal and ebbob, § 864*—when record will not be examined. A reviewing court will not examine the record to find grounds for reversing, but may do so to find reasons for affirming a judgment.

4. Continúan ce, § 7*-—when denial of motion, for is proper. The denial of motion for a continuance in the middle of a trial solely on the ground of filing of additional counts which did not enlarge the bill of particulars and contained nothing to surprise the defendant or require continuance, was not erroneous.

Appeal from the Circuit Court of Kankakee county; the Hon. Abthtjb W. Deselm, Judge, presiding. Heard in this court at the April term, 1917.

Affirmed.

Opinion filed February 12, 1918.

Statement of the Case.

Action by James C. Shreffler, plaintiff, against Cora Fuller, defendant, to recover for labor in clearing some wood land and working the logs into lumber. From a judgment for plaintiff for $486.95, including interest after date of verdict for $475, defendant appeals.

Frank J. Burns and James T. Burns, for appellant.

C. M. Clay Buntain, for appellee.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Carnes

delivered the opinion of the court.

5. Appeal and error, § 1489 ^* —when error in admission of evidence is harmless. The testimony of a witness to the result of a measurement of lumber, that he evidently only knew as he was told by the party measuring it in his presence, was incompetent, but its admission not harmful where there was other competent uncontradicted evidence of the same measurement.

6. Appeal and error, § 1466*—when admission of hill of particulars in evidence is harmless error. The admission in evidence of plaintiff’s bill of particulars, over objection, was not reversible error where there was no reason to suppose it was„ considered or used by the jury as substantive evidence.

7. Trial, § 233*—when hill of particulars is properly sent to jury room. The bill of particulars was properly sent to the jury room as part of the pleadings to he used by them in considering and discussing the items of the plaintiff’s claim, although it had been erroneously admitted in evidence, in an action of assumpsit to recover for labor performed.

8. Trial, § 272*—when requested interrogatory is properly refused. An interrogatory to he answered by the jury, but not presented until after argument, is properly refused.

9. Trial, § 270*—when special interrogatories are properly refused as a whole. Special interrogatories submitted to be answered by the jury and returned with their general verdict, held properly refused, considered as a whole, where they were directed to the several different items of plaintiff’s claim, seeking a finding upon each, and not to a controlling fact in the case as a whole, under the second clause óf section 79 of the Practice Act (J. & A. f 8616), providing that the jury may find specially upon questions of fact along with their general verdict.