Ingraham v. Harmon, 229 Ill. 168 (1907)

Oct. 23, 1907 · Illinois Supreme Court

229 Ill. 168

William S. Ingraham v. Nellie Harmon.

Opinion filed October 23, 1907.

Appeals and Errors—when an appeal will be regarded as prosecuted for delay. Where no question of law is presented to the Supreme Court for consideration under the condition of the record, which was pointed out in the opinion of the Appellate Court, and where nothing is said on the subject in the appellant’s brief and argument and there is no reply brief filed although the point was made in the brief of appellee, the appeal will be regarded as prosecuted for delay, and damages will be assessed under the statute.

Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Randolph county; the Hon. B. R. Burroughs, Judge, presiding.

At the March term, 1906, of the circuit court of Randolph county, Nellie Harmon, the appellee, and Grace Harmon and Lola Harmon, by their next friend, brought suit against William S. Ingraham, appellant, to recover damages occasioned by the death of Felix Harmon, the husband of appellee and the father of Grace and Lola Harmon, while he was engaged as a coal miner in appellant’s coal mine. The suit was afterward dismissed by the next friend of Grace and Lola Harmon as to them. A trial was had without a jury and judgment was rendered by the court in favor of plaintiff for the sum of $1999. From that judgment appellant prayed an appeal to the Appellate Court for the Fourth District, and from the judgment of that court affirming the judgment of the circuit court this appeal is prosecuted.

The declaration, consisting of two counts, charges willful violations of sections 8 and 18 of the Mines and Miners act, (Hurd’s Stat. 1905, chap. 93,) and that the death of Felix Harmon was thereby occasioned. To the declaration defendant filed the general issue.

It is urged by appellant that there is in this record no evidence tending to prove that his failure' to comply with the requirements of the said sections of said act, as charged in the declaration, was the proximate cause of the death of Felix Harmon, wherefore there should be a reversal.

H. Cray Horner, and Goddard & Goddard, (Buckingham & Troup, of counsel,) for appellant.

A. E. Crisler, (George M. Harker, of counsel,) for appellee.

Mr. Justice Scott

delivered the opinion of the court:

No question arises upon the pleadings. No complaint is made of the action of the trial court in passing on the admissibility of evidence. No propositions of law were submitted to the trial court. There was no demurrer to the evidence. There was no motion to find for the defendant. There was no motion, for a new trial. There was no motion in arrest of judgment. Under these circumstances no question of law is preserved for our consideration. (Myers v. Union Nat. Bank, 128 Ill. 478; Bolton v. Johnston, 163 id. 234; Farson v. Hutchins, id. 445; Mann v. Learned, 195 id. 502.) This situation was pointed out by the opinion of the Appellate Court. In the brief and argument filed by appellant in this court nothing is said on the subject. The point is made here by the brief of appellee. No brief in reply has been filed.

We are of the opinion that' this appeal was prosecuted for delay. The judgment of the Appellate Court will'be affirmed, and the clerk of this court is hereby directed to enter a judgment in this court in favor of the appellee, and against the appellant, for $199.90, and execution may issue therefor. Judgment affirmed, with damages.