Kaestner v. Farmers & Merchants State Bank of Marion

Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee upon a promissory note. The cause was tried on the short cause calendar. The alleged errors relied upon are, first, that the trial court erred in refusing to strike the case from the short cause calendar; and second, that the verdict and judgment are against the weight of the evidence.

The bill of exceptions .fails to preserve the affidavit and notice in pursuance of which the case was placed upon the short cause calendar. They appear to have been inserted in the transcript of record where they have no place (Wheeler & Tappan Co. v. Dahms, 50 Ill. App. 531). and where their authenticity is not certified to, as it would have been in their proper place in a bill of exceptions. The bill of exceptions states that appellants’ attorney objected to proceeding with the trial because, as they asserted, the cause was not properly put on that calendar. The objection was overruled and an exception preserved. But there is nothing in the bill of exceptions showing any reason given or grounds stated why the objection shonld have been sustained. Kothing appearing to the contrary, it will be presumed the trial court acted correctly in overruling the unsupported objection. Gaynor v. Hibernia Savings Bank, 166 Ill. 577, 579. Precisely the same objection which is urged here was considered in Oliver v. Gerstle, 58 Ill. App. 615. If,, however, there was any irregularity in the affidavit or notice, it should have been called to the court’s attention at an earlier date than when the case was reached for trial. Freund v. Huylers, 102 Ill. App. 486.

It is urged that the verdict and judgment are against the weight of the evidence, the contention being that the note was altered by the insertion of -the figure six, denoting the rate of interest. In this view we do not concur. There was a special finding by the jury, the nature of which the abstract fails to show. Where an abstract is defective in this way it will be presumed that the finding was against appellant, whose duty it is to present a proper abstract. In the present instance this presumption is borne out by the record. The jury by their verdict settled the 'conflict in testimony in favor of appellee, and their finding was amply justified by the evidence.

The judgment of the Superior Court will be affirmed.

Affirmed.