Coffeen Coal & Copper Co. v. Barry , 56 Ill. App. 587 ( 1895 )

Mr. Justice Boggs

delivered the opimos or the Court.

It is first assigned, as for error, that the court overruled the motion of the appellant company for a continuance.

The ground of the motion was the alleged failure of the appellee to file a copy of the account sued on ten days before the beginning of the term of court. An account was attached to and filed with the declaration in ampió time, but it was not such a detailed and itemized statement of the plaintiff’s claim as we think the appellant was entitled to demand. We regard it, however, as so far an attempt, in good faith, to comply with the requirement of the “ Practice Act ” as to furnish the basis for amendment whereby a continuance might be avoided. A cross-motion for leave to amend was entered but subsequently withdrawn, whereupon the appellant, instead of abiding by the exception to the action of the court in overruling its motion for a continuance, moved the court to require the appellee to file a bill of particulars. The court granted this motion and the appellee filed a detailed statement of his claim. The appellant then renewed its motion to continue the case on the ground that the bill of particulars or account had not been filed ten days before the beginning of the term. This the court overruled and the appellant saved the exception thereto. The purpose of the requirement of the “ Practice Act ” was fully subserved by the bill of particulars, which the court at the request of the appellant company required the appellee to place on file, unless it was taken by surprise by the demand as set forth in detail. It made no complaint of that character, but on the contrary, filed a plea of the general issue and proceeded to the trial upon its merits.

The action of the appellant company in asking the aid of the court to force the appellee to file a proper account and in thereafter pleading to the merits and entering upon the trial of the case is consistent only with the view that it had abandoned its motion for a continuance of the cause and its exception to the action of the court thereon and elected to submit the case for determination at that term. It can not be allowed in this court to shift its position. It is next complained that the evidence was insufficient to support the judgment in this, that it was not proven that the amount paid for the fees of the attorney was reasonable. The proof upon the point was that the appellee paid a sum charged and demanded by the attorney and counselor at law who rendered the service. When it is necessary to establish the value of the services of an attorney a proper inquiry is what sum is usually charged by members of the bar for like services. Reynolds v. McMillan, 63 Ill. 46. The evidence produced was pertinent to this inquiry. It tended, however slightly, to show that, the amount paid was such as attorneys charged for such services.

No specific objection to its admissibility was preferred and no proof was offered tending to overcome it. A general objection was entered, but it does not appear from the record that the precise point sought to be urged in this court was disclosed in the lower court or ruled upon by the judge thereof either when passing upon the objection or the motion for a new trial. Had proper objection been made so that the court and counsel could have known the ground thereof, no doubt such action would have been taken as to have removed all just cause of complaint. It is not permissible to so frame an objection that it will serve to save an exception for the action of a court of review and yet conceal the real complaint from the trial court. It is not contended and was not in the trial court that the amount was unreasonable. The judgment is right upon the merits and there is no error in the record demanding its reversal. It is affirmed.