McGrath v. Miller , 61 Ill. App. 497 ( 1895 )

Mr. Justice Harker

delivered the opinion oe the Court.

The contention of the plaintiff in error that the Circuit Court.of La Salle County had no authority to change the venue to the County Court, and that the County Court should have dismissed the cause for want of jurisdiction, is not well made. Sec. 2, Chap. 146, Bev. Stat., relating to change of venue, expressly provides that “ when a change of venue is granted, it may be to some other court of record of competent jurisdiction in the same county.”

The objection that the judgment does not follow the verdict, but is, “ that the plaintiff is seized in fee of the land described in the verdict of the jury,” when the evidence shows that defendant in error only held the land in trust for her grandchildren, is hypercritical. It was slightly irregular, but worked no harm to plaintiff in error. The evidence showed and the verdict of the jury found, that the defendant in error was entitled to the possession of the premises, .and the recital in the judgment, that she was seized in fee, may be treated as harmless surplusage.

It is also contended that as the suit was commenced by Mrs. Miller in her own right, and not as trustee for her grandchildren, it was error in the court to allow the will of Amanda Howard to be read in evidence, and that there was a variance between the proof and complaint. While we can see but little force in such a contention, even if in the court below the objection had been placed upon the ground of a variance, for the reason that, if the plaintiff in error was not entitled to the possession of the land, it could make no difference to him whether Mrs. Miller was entitled to possession in her own right or as trustee, the fact that he did not, at the time of making the objection, place it upon the ground of a variance,'is a sufficient answer to him now; Where a party objects to evidence sought to be introduced against him, he should disclose the ground of his objection to the court, and if he fails to do so, he will be precluded in the court of appeal from urging that the ground is a variance. Chicago & Alton R. R. Co. v. Morgan, 69 Ill. 492; St. Clair Co. Ben. Soc. v. Fietsam, Adm’r, 97 Ill. 474.

Although in a case for forcible detainer it is not proper to read the complaint in evidence to the jury, as proof of the plaintiff’s right to recover, we are unable to see in the action of the court in allowing the complaint to be read in this case, such error as would justify us in reversing the judgment. Outside of the complaint, defendant in error established her right to recover. The complaint merely recited that she was entitled to the possession of the premises, and that the defendant unlawfully withheld them. We can not conceive how an intelligent jury could consider it as additional proof to her testimony.

The contention that the notice or demand for possession was insufficient, is amply answered by saying that the relation of landlord and tenant did not exist between the parties. Howard had no authority to lease to McGrath without the written consent of Mrs. Miller. He pretended to have such consent in a letter from her which he had lost. Mrs. Miller denied on oath that she wrote such a letter. The jury believed her, and we are not prepared to say they were wrong.

The court properly excluded the testimony of Mrs. Howard. Her husband was interested in the event of the suit.

Plaintiff in error was not entitled to a new trial on the ground of newly discovered evidence. The proposed evidence of Samuel Eicholson, the party making the affidavit, was but cumulative in its character.

We do not care to extend this opinion by a discussion of alleged errors in passing upon instructions. The court holdings in that regard were substantially correct.

While a few slight errors occurred upon the trial (which we have noticed), we feel that in the verdict of the jury and the judgment of the court, substantial justice was done. Judgment affirmed.