Rockenfeller v. Tobias, 3 Ill. App. 461 (1878)

Dec. 1878 · Illinois Appellate Court
3 Ill. App. 461
John M. Rockenfeller et al. v. Henry Tobias et al.

John M. Rockenfeller et al. v. Henry Tobias et al.

Bill op exceptions—What most be shown in.—The bill of exceptions not containing the affidavits read on motion for new trial, nor the instructions given or refused, nor purporting to contain all the evidence, the presumption is that the facts were sufficient to sustain the verdict, and that proper instructions were given. Copying instructions into the transcript by the clerk does not make them a part of the record.

Appeal from the Circuit Court of Woodford county; the Hon. John Burns, Judge, presiding. Opinion filed January 17, 1879.

Mr. H. R. Ryan, for appellant;

upon the question of liability as guarantor, cited Newland v. Harrington, 24 Ill. 206; Wain v. Walters, 5 East 10; Saunders v. Wakefield, 4 Barn. & Ald. 595; Jenkins v. Reynolds, 3 Brod. & B. 14; First Bap. *462Church v. Hyde, 40 Ill. 150; Packard v. Richardson, 17 Mass. 126; Chilcote v. Kile, 47 Ill. 88.

Where the verdict is contrary to the evidence, it will be set aside: Miller v. Hammers, 51 Ill. 175; Adams Ex. Co. v. Jones, 53 Ill. 463; Smith v. Ætna Life Ins. Co. 49 N. Y. 211; Chase v. Debolt, 2 Gilm. 371; Boyle v. Levings, 24 Ill. 223; Clement v. Bushway, 25 Ill. 200; Van Valkenburgh v. Haskins, 7 Wis. 424.

Messrs. Bargs, Shaw & Edwards, for appellees.

Pillsbury, P. J.

The bill of exceptions in this case does not contain the affidavits read on motion for new trial, the instructions given or refused on the trial below, nor purport to contain all the evidence introduced.

The presumption therefore, is that the facts were sufficient to sustain the verdict, and that the court correctly instructed the jury. The fact that the clerk has copied into the’transcript what appears to be instructions, does not make them a part of the record. To he considered by this court they must be incorporated into the hill of exceptions. Drew v. Beall, 62 Ill. 164.

The judgment of the court below will he affirmed.

J udgmeut affirmed.