Allen v. Hickey , 158 Ill. 362 ( 1895 )

Mr. Justice Phillips

delivered the opinion of the court:

As appears from the record in this case the question presented for the consideration of this court is one of fact. At the April term, 1890, of the McLean county circuit court, judgment was rendered against F. C. Allen for the sum of §2386. The return on the summons shows that it was served on P. S. Allen January 2, 1890, by George W. Jewell, special deputy. Appellant contends that he was never served with such summons. The bill filed in the circuit court of Will county seeks the collection of that judgment, and by agreement of the parties the issue was submitted as to whether there was service of such summons. Without entering into a full discussion of the evidence on this issue, it is sufficient to say that it is impossible to reconcile the testimony. The return on the summons of the special deputy, verified by his affidavit, shows service on appellant. On the trial of this issue in the court below, Jewell testified, in open court, as to the details of this service, and related such facts and circumstances as indicate very strongly that his testimony is true. The appellee, Hickey, testified to the service by Jewell, and two disinterested witnesses, about the hour that the summons is said to have been served, saw Jewell standing with a paper in his hand, talking with appellant. On the contrary, appellant denies positively that any such summons was served upon him. His testimony is corroborated by that of two witnesses, Smith and Watson, who allege their presence with appellant in Chenoa at the time when service is said to have occurred, and deny the fact of service. These witnesses were all examined in open court, before the chancellor. The testimony is directly contradictory. The court must accept and believe one state of facts and disbelieve the other. The trial judge saw the witnesses and heard them testifjr, with opportunities of determining the weight and credit to be given their testimony which we do not possess. To authorize a reversal in a case of this character it must appear that there was error in the finding of facts by the chancellor, and such error must be clear and palpable. Coari v. Olsen, 91 Ill. 273; Baker v. Rockabrand, 118 id. 365; Johnson v. Johnson, 125 id. 510; Voss v. Venn, 132 id. 14; Ellis v. Ward, 137 id. 509; Kusch v. Kusch, 143 id. 353.

There is no clear and palpable error in this regard in this record. On the contrary, we think the preponderance of testimony supports the finding of the trial court on this issue, and the judgment of the Appellate Court is therefore affirmed.

T , . , Judgment affirmed.