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trial she obtained a verdict for $3,500, upon which judgment was entered, and the judgment was affirmed by the Branch Appellate Court for the First District.

The accident was clearly due to the negligence of the defendant, and there was no evidence tending to show the contrary. There was practically no question at the trial about the liability of the company for such damages as were the proximate result of the collision, and the controverted questions in the case related to the extent of plaintiff's injuries. The evidence showed that she had neurasthenia, and was pale, anæmic, and in a weak condition. This was not denied, and plaintiff attributed her condition to the accident, while defendant offered evidence tending to show that she had been pale, thin, and delicate looking, and that her condition had been about the same before the accident as afterward. She testified that after the accident she went across the street to the office of a doctor, who discovered that her tenth rib was broken. That doctor testified that she complained of pain in that region, and he thought at the time that there was a fractured rib. Another doctor, who was present at the office, and made the examination, failed to detect any injuries or bruises, and testified that the rib was not fractured, but, owing to her complaint, he applied some adhesive strips. Two other doctors, who saw her that night after she got home, and the next day, and examined her, one of whom continued to treat her, testified that there was no fracture of any rib, or any contusion, bruises, marks, or swelling upon her. There was other evidence tending to show that the rib was not fractured. About five weeks after the accident an examination was made, when it appeared that she had retroversion of the uterus, and there was some evidence that it might have come from a fall or injury. On the other hand, there was evidence that such a displacement could not result from outside violence, and the physicians, generally, who were examined on the trial, testified that such a condition could not be produced by the accident which she described. In the opinion filed, the Branch Appellate Court stated that the question whether the amount awarded was excessive depended largely upon whether the retroversion of the uterus was due to the accident or causes that antedated it, and said that the decided weight of the evidence was that none of plaintiff's ribs were fractured by the accident, and that as to the retroversion the testimony was contradictory, with, as it appeared to them, the weight thereof with the defendant. That court, however, affirmed the judgment.

The only error assigned which we can consider is that the trial court erred in giving the sixth instruction to the jury, concerning the elements of damage which they might properly consider. That instruction is as follows: "The court instructs the jury that if, under the evidence and instructions of the

court, the jury find the defendant guilty, then in estimating the plaintiff's damages, if any, it will be proper for the jury to consider the effect, if any, of the injury upon the plaintiff, and also the bodily pain and suffering, if any, she sustained, and all damages, if any, charged in the declaration, and which, from the evidence, are shown to be the necessary and direct result of the injury complained of." The case was of such a nature as to require accurate instructions, and it must be conceded that this instruction, standing alone, I would have been objectionable. The last part of the instruction, by which the jury were to allow to plaintiff all damages, if any, charged in the declaration, and which, from the evidence, were shown to be the necessary and direct result of the injury complained of, covered all that plaintiff was entitled to recover. In cases of this character the damages are to be determined by the jury from the evidence, viewed in the light of their judgment and experience in the affairs of life, and they should be restricted by the instructions to the evidence in the case and to proper elements of damage. By the instruction the jury were to consider all damages which were charged in the declaration and shown by the evidence, and were also to consider the bodily pain and suffering of the plaintiff, and also the effect, if any, of the injury upon her. There was evidence that she had sold out her business as a milliner subsequent to the accident, and the first clause of the instruction gave to the jury great latitude for conjecture and speculation, which might include that fact and some supposed injury to her business.

It is insisted that this instruction was approved in Chicago, Burlington and Quincy Railroad Co. v. Warner, 108 Ill. 538. But that is a misapprehension. The instructions are materially different, and in that case all the objections to the instruction were placed upon the common ground that there was no evidence upon which to base it. The court being unable to agree with counsel that there was no evidence of the several elements of damage mentioned in the instruction, the c jections were not sustained. It is, however, a settled rule that the instructions to the jury shall be regarded as a connected series, constituting a single charge, and, when they are so considered, if it is clear that the jury could not have been misled or have drawn an improper inference from a single instruction, the judgment ought not to be reversed. In this case there were a number of instructions given at the instance of defendant relating to the duty of the jury to consider and decide the case solely from the evidence, under the instructions of the court as to the law. The ninth instruction told them that in considering and deciding the case they should look solely to the evidence for the facts. By the tenth they were told that the plaintiff could not recover unless they believed. from a preponderance of the evidence, that she was ex

ercising ordinary care, that the defendant was negligent, and that the negligence was the proximate, direct cause of her injuries. By the nineteenth they were advised that, if they were unable to say that the plaintiff had proved, by a preponderance of the evidence, that the defendant was guilty of negligence as alleged in the declaration, and that said negligence was the proximate, direct cause of the plaintiff's injuries, the jury should find the defendant not guilty. The twenty-third stated that if the jury believed, from the evidence, that plaintiff's condition was the result of nervous disorders or physical infirmities that existed prior to the accident in question, she could not recover damages for such condition, and could not recover damages for any condition existing prior to the accident. By the twenty-fourth instruction the jury were told that the questions of liability and damages were matters to be determined from the evidence, under the instructions of the court. In view of all the instructions given, we do not think the jury could have been misled by the sixth.

The determination of the question of law raised in this court cannot be made to depend upon what the Appellate Court said respecting the controverted questions of fact in the opinion filed in the case. The statute requires the Appellate Court to file an opinion giving the reasons for the decision, but it is the judgment of the court, and not the opinion, which is reviewed on appeal to this court. The law has confided to Appellate Courts the duty of determining whether a judgment is against the weight of the evidence, and we must presume that the court in this case found that the verdict and judgment were not against the weight of the evidence. On that subject it may not be amiss to repeat what this court, speaking through Mr. Justice Baker, said in Chicago and Alton Railroad Co. v. Heinrich, 157 Ill. 388, 41 N. E. SCO, as follows (page 394, 157 Ill., page 862, 41 N. E.): "But the Appellate Court is not bound by the judgment of the trial court, or by the verdict of the jury. It is true, all questions of fact are for, the jury, but the trial court has a supervisory power over their verdict. At common law, and under the law as it was in this state prior to the act of July 21, 1837 (Laws 1837, p. 109), the granting or refusing a new trial rested in the discretion of the court before which the case was tried, and could not be assigned for error; but by that act it was provided that exceptions should be allowed to opinions or decisions overruling motions for new trials, and that the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding.' And under that act, the substance of which has been retained in section 61 of the present practice act, it has always been held that the court of review may inquire whether the judgment should be reversed upon the ground that the verdict is against the weight of evi

dence. Hill v. Ward, 2 Gilman, 285. Of course, this rule is modified, as to this court, in certain classes of cases, by sections 88 and 90 of the practice act, but it has in no way been modified or changed as to the Appellate Courts. It is the right and duty of the Appellate Courts, under the law as it exists in this state, to reverse the judgments of trial courts and the verdicts of juries, where, upon consideration of the testimony, they find that such judgments or verdicts are clearly against the weight of evidence. We must presume, however, that in this case the Appellate Court has faithfully performed that duty, and has found that the evidence sustains the verdict and judgment." Again, in Chicago and Erie Railroad Co. v. Meech, 163 Ill. 305, 45 N. E. 290, the court, repeating the duty of Appellate Courts under the law, said (page 308, 163 III., page 291, 49 N. E.): “A performance of this duty is absolutely essential for the preservation of the rights of citizens and property owners in all those classes of cases where the judgments of the Appellate Courts are final and conclusive upon all questions of fact;" but it was also said, as in the previous case, that we must presume that the Appellate Court found that the evidence properly sustains the verdict and judgment. It is good ground of a motion for a new trial that the verdict is manifestly against the weight of the evidence, or that the damages awarded are excessive, and the motion for new trial in this case contained both.

The

Section 61 of the practice act provides that exceptions taken to the decision of the court overruling a motion for a new trial shall be allowed, and the party excepting may assign for error any decision so excepted to. duty of considering and deciding upon any error so assigned is intrusted to the Appellate Court. Those courts are a part of the judicial system of the state equally with the jury and the trial judge, and must discharge their duty not according to the judgment of others, but according to their own judgment. The law commits to the sound judgment of the Appellate Court the question whether the trial court erred in overruling a motion for a new trial on the ground that the verdict is against the weight of the evidence. At the common law the trial of an issue of fact was by judge and jury, the judge stating to the jury the issues, and what evidence had been given in support of them, and summing up the whole case. Section 51 of the practice act provides that the court shall only instruct as to the law of the case; but trial by jury does not imply a trial without a judge having a supervisory power over the verdict, or without a court of review guided and controlled by its own conscience and judgment in passing upon questions committed to it by the law. If a verdict and judgment are clearly against the weight of the evidence, a new trial should be awarded by the Appellate Court, and the issues submitted to another jury. But the functions of this court in

cases of this kind are entirely different in that respect. The judgment of the Appellate Court in this case is conclusive upon the facts, regardless of what is said in the opinion, and there is no error appearing which would justify a reversal of its judgment.

Accordingly, the judgment of the Appellate Court is affirmed. Judgment affirmed.

SOULE et al. v. PEOPLE ex rel. CULLEN, State's Atty.

(Supreme Court of Illinois. Dec. 16, 1903.) VILLAGES-INCORPORATION-QUO WARRANTO -PLEAS-LACHES-APPEAL-ORIGINAL DOCUMENTS-TRANSMISSION TO SUPREME COURT. 1. City & Village Act 1872 (Laws 1871-72, p. 218), providing for the organization of villages, requires the holding of a mass meeting and voting on the question whether or not the inhabitants shall incorporate as a town, and declares that, if two-thirds of the votes are in favor of the incorporation, the organization shall proceed. The act also authorizes the submission to the voters of an incorporated town of the question whether it shall become a village under the act on petition of any 30 voters of the town. Held, that a plea to a writ of quo warranto to oust a village, alleged to have been organized under such act, from the use of corporate franchises, which fails to show either that a mass meeting was held for the organization of the town or that 30 voters of the town petitioned for the submission of the question whether defendant village should be organized, is insufficient.

2. Where for more than 28 years a municipality exercised the functions of a legally incorporated village in various ways, and the people of the village and the public authorities during all that period acquiesced in its exercise of corporate powers, the state was barred by laches from maintaining quo warranto to oust it from such powers on account of irregularities occurring in the original organization proceedings which prevented a strictly legal village organization.

3. Where certain original documents received by the state's attorney were filed in the Supreme Court and submitted with a cause then pending, but such documents were not shown by the transcript of the record, and were not transmitted by virtue of an order of the judge of the trial court, as authorized by Sup. Ct. Rule 12 (47 N. E. vi), such documents will be stricken from the files.

Error to Circuit Court, La Salle County; Chas. Blanchard, Judge.

Quo warranto by the people, on the relation of Charles S. Cullen, state's attorney, against Charles E. Soule and others. From a judgment in favor of relator, respondents bring error. Reversed.

John H. Armstrong and Browne & Wiley, for plaintiffs in error. Charles S. Cullen, for defendant in error.

SCOTT, J. This was an information in the nature of a quo warranto, filed in the circuit court of La Salle county on March 5, 1902, in accordance with an order of the court granting leave which had been entered on that day. It questions the right of Charles E. Soule to hold the office of president, and the right of J. W. Carr, William Callagan, M. L. Court

right, Louis Dondanville, L. M. Eaton, and August Girolt to hold the offices of trustees of the village of Sheridan, in that county, and these seven persons were made respondents. The petition is in the usual form, but it appears from the petition for leave to file that the charge of the usurpation of the offices in question is based upon the alleged fact that the village of Sheridan is not legally organized, and is without a valid franchise. The respondents entered their appearance and filed two pleas to the information. To these pleas the people demurred. The demurrer was sustained to both pleas. The respondents abided their pleas, judgment of ouster was entered at the March term, 1902, of that court, and Soule alone sues out of this court a writ of error to review the judgment.

The only question is whether either of the pleas presented a good defense. The first plea seeks to show a valid organization of the village of Sheridan, and avers that on June 24, 1872, the inhabitants of the territory which is now within the limits of the alleged village of Sheridan organized such territory and the inhabitants thereof into a corporation or body politic by the name and style of "President and Trustees of the Town of Sheridan," under the act of March 3, 1845, and that thereafter, on July 26, 1873, an election was held in the said town of Sheridan for the purpose of organizing as a village under the city and village act of 1872 (Laws 187172, p. 218), and the plea contains averments intended to show an organization under that act. This plea was insufficient. The act of 1845 (Rev. St. 1845, p. 111, c. 25, § 1) provided for the inhabitants of a territory, upon proper notice, holding a mass meeting and voting upon the question whether or not they would incorporate as a town. The second section of the act provided that, if two-thirds of the votes were in favor of incorporation, the organization of the town should proceed. The plea fails to show that such proportion of the votes was in favor of incorporating. The attempt to organize a village was under the statute of 1872. Rev. St. 1874, p. 242, c. 24, § 178. Provision was made by that act for the submission to the voters of any incorporated town, by the president and trustees thereof, on the petition of any 30 voters in such town, of the question whether such town shall become organized as a village under that act. This plea does not aver that 30 voters of the town of Sheridan petitioned for the submission of this question, and therefore fails to show a legal organization of the village of Sheridan.

The second plea proceeds upon a different theory. It avers that at all times after the organization of the village on July 26, 1873, said village of Sheridan has been represented by a president and board of six trustees duly elected in accordance with the law; that during all that time the officers and authorities of said village have annually levied and collected village taxes and expended the same

for municipal purposes, have duly passed, published and enforced village ordinances, and have erected and maintained a village ball and a prison; that public parks have been dedicated to said village, and are owned, improved, and maintained by it; that a bridge had been erected within the limits of said village across the Fox river, and has been owned, maintained, and repaired by said village since its construction, in 1874, with village taxes levied and collected for that purpose; that bonds and other evidence of indebtedness were issued by said village to obtain money to build said bridge, which bonds and evidence of indebtedness were paid by said village, acting as a body politic under the name and style of "The Village of Sheridan"; that by said name and style it has been sued in the circuit court of said La Salle county, and by that name and style a judgment in that court was entered against it as a municipal corporation; that it has, by its name and as a municipal corporation, purchased valuable lands in said county, the deed conveying the same to it being of record in said county; that on November 1, 1874, the authorities of said village, acting as such, purchased lands within the limits of said village for a cemetery; that said lands were surveyed and platted into burial lots, and the plat recorded in the proper office in La Salle county; that on January 10, 1895, the authorities of said village made an addition to said cemetery, and caused the same to be platted, and the plat thereof to be recorded in the proper office in said county. The plea avers that the respective state's attorneys of said county had notice of such suit, deeds, and plats. It further avers that since the establishment of such cemetery the same has been maintained by the village, and used exclusively for burial purposes; that the authorities of such village, acting as such, have sold to private parties numerous lots, which have been used for burial purposes in said cemetery; that the titles to said lots have been derived from the village of Sheridan; that by reason of the great laches in the commencement of this suit and the great injury and injustice which will result to private individuals who have acquired valuable property rights and interests from said village of Sheridan, and by reason of the great injury and injustice which will result to the inhabitants of said village, who have collected and expended large sums of money in maintaining said village as a body politic or corporate under the well founded belief that the same was duly and legally incorporated as such, as well they might infer from the actions and laches of the respective state's attorneys of said county during the period since July 26, 1873, and by reason of the premises, plaintiff should be barred from the further prosecution of the suit, and avers the election and qualification of the respondents to the respective offices with the usurpation of which they are charged by the information.

In State v. Leatherman, 38 Ark. 81, it was said: "The state herself may, by long acquiescence and by continued recognition through her own officers, state and county, of a municipal corporation, be precluded from an information to deprive it of franchises long exercised in accordance with the general law."

Jameson v. People, 16 Ill. 257, 63 Am. Dec. 304, was a quo warranto, instituted in 1855, to test the organization of the town of Oquawka, on the ground that the vote on the question of organization at the mass meeting held in April, 1851, was by ballot, instead of viva voce. The organization of that town had been recognized by two acts of the Legislature, and it was shown that after the mass meeting in 1851 the electors proceeded with the organization of the corporation; that town officers were thereafter elected from year to year; that it was generally recognized as a public municipal corporation; that it exercised the franchises and powers conferred upon such corporations by law, passed and enforced ordinances, levied and collected taxes, and made contracts and incurred liabilities. This court there said: "Were we to hold, after this acquiescence of the public and these recognitions of the Legislature, that the town remains unincorporated on account of some defect in its original organization as a corporation, what confidence could individuals have in the validity of securities emanating from these local authorities? * * It would seem incompatible with good faith and against public policy, although irregularities may have intervened in the organization of the town, now to hold that it is not a body corporate, and we do not think the law requires us to do so."

People v. Boyd, 132 Ill. 60, 23 N. E. 342, was an information for quo warranto against school directors, the charge being that the school district was not properly organized. In that case the school district had been exercising corporate powers as such for a period of five years. This court denied the remedy on account of the lapse of time, and it was said, after a discussion of authorities and a reference to the great public inconvenience that would result from a judgment of ouster, that "it would seem to us that this case ought to fall within that class of cases where the statute of limitations should apply, and even the right to file the information should be refused on the grounds of public policy, even before the lapse of five years, if the time elapsed were such as a wrong would be done by granting the writ."

In Chicago and Northwestern Railway Co. v. West Chicago Park Com'rs, 151 Ill. 204, 37 N. E. 1079, 25 L. R. A. 300, the right of the park commissioners to exercise corporate powers over a certain street was in question, the objection being to the validity of the proceeding under which they came into control of the street. The commissioners had been in control thereof for over 12 years, and during that time the public authorities of the dty of

Chicago exercised no jurisdiction over the street, but, together with the general public, acquiesced in the control thereof by the commissioners; and this court said (page 216, 151 Ill., page 1083, 37 N. E., 25 L. R. A. 300): "Whatever irregularity or informality may have intervened, such as is shown upon this record, has been cured by the long-continued concurrent acquiescence of the city, the park commissioners, and of the general public."

In People v. Hanker, 197 Ill. 409, 64 N. E. 253, this court held leave to file an information in the nature of a quo warranto to oust respondents as trustees of a village was properly refused, where the village had exercised, without question, the powers and functions of a municipal corporation for a period of 20 years, because of the long delay of the relator, and because of his acquiescence in the organization and acts of the village, of which he was an inhabitant; and it was said, quoting with approval from People v. Schnepp, 179 Ill. 305, 53 N. E. 632: "An unreasonable delay or an acquiescence on the part of the persons complaining, as well as consideration of the public interest or convenience, will justify a refusal to grant leave to file the information or to proceed to judgment, although no statute of limitations has intervened."

In People v. Pike, 197 Ill. 449, 64 N. E. 393, it was held that, where a territory has exercised all the functions of a municipal government, with the acquiescence of the public, throughout a period of 20 years, strict proof of its legal organization will not be required in quo warranto.

Here it appears that for more than 28 years, in multitudinous ways, as specified above, the functions of a legally incorporated village have been exercised by the persons composing this so-called village. Public authorities, the people of the village, and those with whom it dealt, during all that period have acquiesced in its exercise of corporate powers. To permit the state now to oust it from the exercise of those powers on account of the irregularities which intervened more than a quarter of a century ago, and which prevented a strictly legal organization of the village, would be to work a great wrong to the inhabitants of the village and to those who have acquired property rights on the basis that there was a proper organization of the municipality. To permit such a judgment would be against the public policy of our commonwealth. The acquiescence of the general public and the public authorities in the corporate acts of this village, and the laches of the state in instituting this proceeding, as these matters are averred by the second plea, constitute a meritorious defense to this action.

Counsel for defendant in error has transmitted to the clerk of this court, for presentation to us, two letters addressed to him, signed by certain of the respondents, and a petition addressed to him, signed by residents of the village of Sheridan, and a certificate of the clerk

of La Salle county showing certain proceedings had in the village of Sheridan subsequent to the entry of the judgment in the court below in this cause, and, based on these, prints with his brief what he calls “Addenda and Personal Statement of the State's Attorney." None of the documents in question are shown by the transcript of record, and they are not transmitted by virtue of an order of the judge of the lower court, made in accordance with rule 12 of this court (47 N. E. vi), which is the only method by which original documents can be presented for our inspection. Submitting these documents was a violation of the rules of this court. This is a court of review. Counsel must be content with the presentation of such facts as appear from the record. No others will be considered here. The letters, the petition and the certificate so transmitted will be stricken from the files.

The judgment of the circuit court will be reversed as to all the respondents, and the cause will be remanded, with directions to the circuit court to sustain the demurrer as to the first plea and to overrule the demurrer as to the second plea.

Reversed and remanded, with directions.

BRUEN v. PEOPLE.

(Supreme Court of Illinois. Dec. 16, 1903.) BURGLARY-WORDS AND PHRASES-INDICTMENT-VARIANCE-EVIDENCE-ERROR-EXCEPTIONS-RECORD.

1. Under Cr. Code, § 36 (Hurd's Rev. St. 1899, c. 38), defining burglary generally, and fixing the punishment at imprisonment from 1 to 20 years, with a proviso that when it is committed at night the punishment shall be imprisonment from 5 to 20 years, there is no variance between an indictment which does not state when a burglary was committed and proof that it was committed at night.

2. On a trial for burglary, where the indictment charged the breaking and entering into the hotel of P. & S., partners therein, evidence of a witness that he knew the owners of the hotel and that they were P. & S., "Washington Porter and Nate Salisbury," and that of certain employés of the hotel that they were in the service of P. & S. in the management of the hotel, sufficiently shows the partnership.

3. A hotel is a building within Cr. Code, § 36 (Hurd's Rev. St. 1899, c. 38), defining burglary as breaking or entering a dwelling house "or other building."

4. Where one was accused of burglary of a hotel, evidence of the discovery on his person of keys belonging to two other hotels, together with one which would open the room he had entered, was admissible.

5. Objections to the mode of summoning the grand and petit juries can only be taken by challenge of the array or motion to quash the indictment.

6. Irregularities in making up the record in a criminal case are waived by failure to enter any objections or exceptions in the trial court.

7. A recital in the record that "the grand jurors aforesaid were duly sworn" is suflicient to show a compliance with 2 Starr & C. Ann. St. 1896 (2d Ed.) p. 2396, c. 78. par. 17, providing that an oath shall be administered to the foreman, and also an oath to the other grand jurors.

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