Goodwin v. Durham, 56 Ill. 239 (1870)

Sept. 1870 · Illinois Supreme Court

56 Ill. 239

Benjamin Goodwin v. Daniel Durham.

1. New tbiae — verdict against the evidence. In this case the verdict of the jury being manifestly against rne weight of the evidence the judgment is reversed that a new trial may be had.

2. Instructions must be based upon the evidence.

3. Bill of exceptions — aided by certificate of the judge. The certificate of the judge who tried a cause below, that the bill of exceptions contains all the evidence, is conclusive, and a suggestion of counsel that the record in such case does not contain all the evidence will not be considered by this court.

Appeal from the Circuit Court of Kankakee county; the Hon. Chables H. Wood, Judge, presiding.

The opinion states the case.

Messrs. W. H. and H. L. Richakdson, for the appellant.

Mr. C. A. Lake, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

This was an action of trespass, brought by the appellee against the appellant to recover damages for injuries committed by the stock of appellant.

A trial was had at the April term of said court, and resulted in a verdict for appellee for the sum of $226.

The defendant below brings the cause to this court by appeal, and assigns, among others, two causes of error, viz.:

First. That the court erred in refusing to grant a new trial, because the verdict is against the weight of evidence.

Second. That the court erred in giving the plaintiff’s instructions.

We think that these errors are well assigned.

We have carefully examined the evidence preserved in this record, and are unable to find evidence to sustain the verdict to any thing like the amount found by the jury. It strikes us at first blush that the verdict in this case is manifestly against the weight of evidence. In such case, it is the well established rule in this court to award a new trial. The sixth instruction asked by the plaintiff below should not have been given. Even if it stated the law correctly, there is no evidence in the record upon which it could properly be based. It is suggested by the counsel for the appellee that this record does not contain all the evidence. We can not consider this suggestion. The judge who tried the cause certifies that the bill of exceptions contains all the evidence. His certificate is conclusive. The judgment must be reversed, and the cause remanded for-a new trial.

Judgment reversed.