Orzolek v. Schenck ( 1914 )

Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Appeal and error, § 1013^*—necessity that record show exception to refusal of peremptory instruction. Where the record fails to show an exception to the refusal of a peremptory instruction to find for defendant the latter cannot contend, on appeal, that the instruction should have been given on the theory that there was no evidence tending to sustain allegations of the declaration as to issues raised by special pleas. 4. New trial, § 51^*—questions presented on motion for. Upon motion for new trial the question is not whether there was a total lack of evidence tending to prove the issues, but whether the verdict was contrary to the evidence upon those issues. 5. New trial, § 52^*—verdicts against weight of evidence. Where the verdict is clearly and manifestly contrary to the weight of the evidence it is error to deny a motion for a new trial. 6. Removal oe causes, § 11^*—time for filing petition. Where the summons in an action was served twenty-eight days before the first day of the term at which it was returnable and the declaration was filed nearly a year before such return day, a petition to remove the cause to the federal court filed on the seventeenth day of the term is not in apt time under the act of Congress requiring the petition to be filed in the State court “at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,” since, although the statutes providing for a continuance where the summons is not served and the declaration filed ten days before the first day of the term do not expressly provide that the defendant must appear and plead on the return day of the summons where the summons is so served and the declaration so filed, such is their clear intent and meaning.