Hammill Fire Escape Co. v. Davis, 64 Ill. App. 555 (1896)

June 11, 1896 · Illinois Appellate Court

64 Ill. App. 555

The Hammill Fire Escape Company v. John Davis et al.

1, Appellate Court Practice—What the Abstract Must Show.— Where the trial judge hears the witnesses, and denies a motion for a new trial, the burden is upon the unsuccessful party to show by his abstract of the record that the ruling of the trial judge was wrong.

Assumpsit.—Appeal from the Circuit Court of Coot County; the Hon. Thomas G. Windes, Judge, presiding.

Heard in this court at the March term, 1896.

Affirmed.

Opinion filed June 11, 1896.

Weigley & Eastman, attorneys for appellant.

McMurdy & Job, attorneys for appellees.

Mr. Presiding Justice Gary

delivered the opinion of the Court.

These parties during the years 1886-7-8, were in such relations with each other that, as the brief of the appellant states it, “ the two businesses were consolidated.”

The abstract of the pleadings is “ declaration, narr. and common counts; ” “ plea of non assumpsit; ” and we infer that the appellees sued the appellant in assumpsit. But we are not informed by the abstract what the appellees claimed.

The abstract does state, “ 36-44,” books offered in evidence as to the entries testified to by witness, except as to the price. We understand “ 36-44 ” to refer to nine consecutive pages of the record.

blot an exception as to admission or rejection of evidence or giving or refusing instructions is alluded to in the brief of the appellant, except by way of recital, and no complaint is made of anything in those particulars.

The whole complaint is that the court did not' grant a new trial because of insufficient evidence to justify the verdict, varied a little by a statement that part of the verdict is contrary to the instructions of the court.

To determine whether that complaint is well founded, we are expected to review one hundred and fourteen record pages of oral testimony, without knowledge of the contents of nine record pages of evidence from books. . Any conclusion we might reach would be as likely to be wrong as right. The dealings through the years mentioned were many; including a good deal of exchanging of checks. The circuit judge, fresh from hearing the witnesses through a three days trial, denied the motion for a new trial, and from the abstract we can not tell whether he was right or wrong. We can not know what items were claimed by the appellees. There is no bill of particulars, and what the books may have proved is not shown.

The principal contest seems to have been about an item of $1,000 for patterns which was the subject of much conflicting and irreconcilable testimony. It was for the jury to say which was true. The rest of the verdict seems to have been for what was shown by the books, and to have been contrary to the instruction of the court as to the sufficiency of the proof; but if the court, on motion for a new trial, was convinced that the jury took a more correct view, the motion for a new trial was properly denied. Koerper v. Jung, 33 Ill. App. 144; Kingv. Poole, Cases Temp. Harwd. 23; Van Vacter v. Brewster, 1 S. & M. (Miss.) 400.

The judgment is affirmed.