Rockford Insurance v. Nelson , 75 Ill. 548 ( 1874 )

Mr. Justice Breese

delivered the opinion of the Court:

This was assumpsit, in the Hercer circuit court, on a policy of insurance, and an appeal by the insurance company. The plaintiff recovered as for a total loss.

This is the second appearance of this cause in this court. On the first, the judgment, in favor of the plaintiff, was reversed on the ground the damages were too large.

The cause was duly remanded, and the remanding order filed in the Hercer circuit court on the 28th February, 1873. On the 24th Harch, 1873, at the Harch term, defendant applied for a change of venue, and on the 25th an order was entered, changing the venue to the county of Rock Island.

It appears the papers and transcripts were not transmitted to Rock Island county until Hay 5, and the cause docketed Hay 9.

The first point appellants make is, that it was error to force them to trial at that term; that the jurisdiction of the circuit court of Rock Island county did not attach until the transcript and papers were filed. The statute on this subject is plain: “ The clerk of the court to which such cause is certified shall file the same, and the cause shall be docketed by the clerk, and shall be proceeded in and determined by the court in all things, as well before and after judgment, as if it had originated therein.” Ch. 105, R. S. 1845, § 10.

Appellants took a change of venue on the 25th of March, and had abundant time in which to make all needful preparations for trial. The suit had been pending since 1871; there had been one trial, and a hearing in the Supreme Court, and they well knew all the points of their case, and had ample time for preparation.

We think there was no error in proceeding to trial at the May term.

The next point is, it was error to deny the motion for a continuance.

There is nothing in this point. Appellants had from the 25th March to the day of trial — near two months — to procure all the testimony they desired. They showed no diligence to obtain testimony.

The next point is in sustaining plaintiff’s demurrer to defendants’ challenge to the array of petit jurors, and thereby overruling their challenge.

The fact appears to be that the week for which the jurors had been summoned had expired, and their functions ceased. The jury in question was drawn in the mode prescribed by the statute—it was not selected by the sheriff, which was the objectionable feature of the old law — and the only difference perceivable is, that they were not drawn and summoned twenty days before court. It is apparent, in many cases, this would be impossible, and courts must resort to their inherent powers as recognized at common law. Stone v. The People, 2 Scam 326; Murphy v. The People, 37 Ill. 447.

The next point made is, that the verdict is against the preponderance of the evidence.

From the fact the jury was required to find specially on several important facts, and did make direct response to them, and found a general verdict for plaintiff, we must presume the jury well considered all the facts. On all, or nearly all, the important facts, there was a direct conflict of evidence, presenting a case peculiarly for the jury. We will not interfere with their finding, as we are not satisfied they decided against the weight of testimony. We will not go into detail on this head. Suffice it to say, there is much in the record to show this application for insurance was set on foot by the agent of appellants, in order to get in hand a premium for the risk, of about forty-five dollars, he, entirely reckless and disregardful whether the property insured was a hotel or boarding house, neither of which, it is claimed, he was authorized to insure, but the character of which he well knew, he living in the family.

Exceptions are taken to the rulings of the court upon the instructions asked on both sides.

There is one serious objection to them—they are too expansive and voluminous. Those of appellants are, in effect, an argument of the case to the jury, and cover the whole ground of controversy, the real points in them at the same time being capable of compression into one page of legal cap. We have often adverted to this practice as improper, tending to confuse and mislead a jury, and not conducive to the ends of justice.

In these instructions we find nothing to object to, except their volume.

The burden of appellants’ complaint seems to be, that appellee stated in her application she owned the property in fee simple. What did this woman know about a fee simple estate? She told the agent the facts, and he, of Ms own instigation, inserted in the application the bind of title. He was willing to do any thing to get money in the shape of premium; and that she made a false statement of values in her preliminary proof of loss; and this, they urge, is illustrated by the finding of the jury, that being much less than her sworn statement of values. This proves nothing. How often is it' a jury finds values much less than the witnesses put them at % • Again, as to the wardrobe of her children; they were living with her as part of her family, and she might well suppose all they had in the house belonged to her. These questions, as also those relating to the barn, were fully canvassed by the jury, and we cannot say their verdict is against the evidence; certainly not to such an extent as to justify our interference, especially after two trials.

Perceiving no substantial error in the record, the judgment is affirmed.

Judgmmt affirmed.