Brookbank v. Smith, 3 Ill. 78, 2 Scam. 78 (1839)

Dec. 1839 · Illinois Supreme Court

3 Ill. 78, 2 Scam. 78

Arraham Brookbank, plaintiff in error, v. Joseph Smith, defendant in error.

Error to Bureau.

The statute requiring the parties to produce, on a trial before a justice of the peace, all their claims not exceeding the jurisdiction of the justice, precludes the plaintiff from exhibiting other and different claims, in the Circuit Court on appeal, than those produced and relied on before the justice.

An exception cannot be taken to the opinion of the Circuit Court in granting a motion for a new triad ; it is only to a decision overruling and refusing such a motion, that an exception can be taken.

On the 16th of March, 1838, the plaintiff commenced a suit against the defendant, before a justice of the peace of Bureau county, who rendered a judgment against the plaintiff for $ 7,50 and costs of suit. The plaintiff appealed to the Circuit Court, and filed a new bill of particulars, embracing the account filed before the justice, together with additional items amounting to $ 21,45. The Court, on motion of the defendant’s counsel, rejected all of the additional items; and at the June term, 1838, the Hon. Dan Stone presiding, a judgment for $ 1,25, in favor of the plaintiff, was rendered, a new trial granted, and the cause continued. At the March term, 1839, the Hon. Thomas Ford presiding, the cause was again tried. On this trial, the plaintiff offered evidence to prove all the items of his bill of particulars as originally filed in the Circuit Court, which evidence the Court rejected, and gave judgment for the defendant for six cents.

The plaintiff excepted to the opinion of the Court, and brought the cause to this Court by writ of error, and assigned for error both of the decisions of the Court below.

O. Peters, for the plaintiff in error,

cited McKinney v. Finch, 1 Scam. 152 ; Thompson et al. v. Hatch, 3 Pick. 512-16 ; Howe’s Pract. 1, 2 ; and contended that a bill of particulars is always amendable, where the amendment will further the ends of justice. 4 Cowen 503.

N. H. Purple, for the defendant in error.

Smith, Justice,

delivered the opinion of the Court:

We have no doubt that the Circuit Court decided correctly in rejecting the evidence offered under the additional bill of particulars filed in the Circuit Court.

The statute requiring the parties to produce, on the trial before the justice, all their claims, certainly precluded the plaintiff exhibiting other and different claims, in the Circuit Court, than those produced and relied on at the trial before the justice.

The error said to arise from granting a new trial, cannot be assigned for error, not merely because the exception was not made at the term at which it was granted, but because it could, at no time, be cause of error, according to the principles of the common law, or the practice of the courts.

The statute allowing exceptions to the decisions of the Circuit Court, on grounds heretofore decided not to be reviewable in this Court, because the Circuit Court had, in those cases, only exercised a legal discretion, does not embrace the present case. It is only for overruling and refusing applications for new trials, that exceptions are allowed, and made causes which may be assigned for error in this Court, not for granting them. The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed,.