Board of Education v. Hoag ( 1886 )

Welch, J.

This was an action of assumpsit brought by the appellee against the appellant. General issue filed.

On the 27th day of October, 1885, this cause came on for trial, a jury was called and verdict rendered for appellee on which verdict judgment was entered by the court. There was no one present at the trial representing the appellant. On the first day of December appellant appeared and moved the court to set aside the judgment, which was denied. Motion by appellant to set aside judgment for the purpose of entering motion for new trial. Motion overruled. Motion by appellant for leave to file motion for new trial. Motion denied. To each of the said rulings of the court the appellant at the time excepted. Motion for new trial and reasons therefor filed December 2, 1885. This motion was filed during the October term at which judgment was rendered.

The first error assigned is, that the court refused to vacate the judgment so entered and let the appellant in with its defense. On the ground this motion was based it was one addressed to the discretion of the court, and we can not say there was any abuse of that discretion. The judgment should have been vacated or modified for another reason as it awarded execution against the appellant. Botkin v. Osborne, 39 Ill. 101.

The second error assigned is that the court refused to entertain a motion for a new trial which was presented in open court in writing on one of the days of the term at which the judgment was entered and bearing the file mark of the clerk of the court. Under Sec. 56 of the Practice Act, it is provided: “ If either party may wish to except to the verdict or for other causes to move for a new trial he shall before final judgment be entered or during the term it is entered by himself or counsel, file the points in writing particularly specifying the grounds of such motion, and final judgment shall thereupon be stayed until such motion can be heard by the court.” In this case judgment was entered immediately upon the rendition of the verdict. This motion was presented during the term at which the judgment was entered. It was in writing, particularly specifying the grounds of the motion and it was filed with the clerk. The appellant did all that it was required to do under the statute, supra. Its right to file a motion for a new trial was a right conferred by law. A right which the court had no discretion in regard to or right to re. fuse. Appellant had the right to make the motion and having filed the same with the clerk in apt time it was the duty of the court to have entered, heard and disposed of the motion for a new trial. It was error to refuse it. For the errors . herein indicated the judgment is reversed and cause remanded with directions to enter, hear and dispose of the motion for a new trial, appellee to pay the costs in this court.

Reversed cmd remanded.