Syllabus.

have another guardian appointed and pay the money over to him; he claimed nothing for the support of Emily, but said she should have every dollar with interest.

The decree of the Circuit Court is reversed, and the cause remanded for further proceedings consistent with this opinion. Decree reversed.

WILLIAM L. HAMBLETON

v.

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. LEVI

YOUNG.

1. QUO WARRANTO -in a proceeding by — when jurisdiction over defendant not acquired. Leave was granted a party to file an information in the nature of a quo warranto, notice of which was given the defendant, but without further process. A rule was entered requiring the defendant to plead, which he failed to do; and, proof of the service of the copy of the same upon him being made, his default was taken, and the court pronounced judgment of ouster against him. Held, that the court acquired no jurisdiction to enter the rule and render the judgment.

2. SAME-jurisdiction — how acquired. After leave given to a party to file an information in the nature of a quo warranto, the court can only acquire jurisdiction by service of a writ, under seal of the court, and running in the name of the people of the State of Illinois, or by voluntary appearance of the defendant. This was the practice under the statute of Anne, from which ours does not substantially differ.

APPEAL from the Circuit Court of Pulaski county; the Hon. JOHN OLNEY, Judge, presiding.

The opinion states the case.

Messrs. MULKEY, WALL & WHEELER, and D. F. LINEGAR, for the appellant.

Mr. D. W. MUNN, for the appellee.

Opinion of the Court.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an information in the nature of a quo warranto against the appellant, in which the Circuit Court rendered judgment of ouster on default, and the question made upon the record is, whether the court had jurisdiction. Notice of the intended application for leave to file the information was given to the defendant by the attorneys of the relator, but he did not appear to such notice. The leave was given, and, at the same time, without further process, a rule was entered requiring the defendant to plead. This rule was not served, but at a subsequent term another rule to plead was entered, and, upon the affidavit of the relator that he had served a copy of that rule, as certified by the clerk, upon the defendant, the judgment of ouster was pronounced.

It is very clear the court had no jurisdiction to enter the rule to plead and pronounce judgment for non-compliance therewith. At the time this rule was entered, the defendant had never been brought into court, nor even had an informal notice that a suit was pending against him. He had merely received a notice, signed by the attorneys of a private person, of the intention of that person to ask leave of the court to commence legal proceedings against him in the name of the people. Whether such intention had been carried into effect, or whether the court had granted the leave, the defendant had no knowledge. But even if he had been notified, informally, of the pendency of the suit, as he was after the entry of the rule, and before the rendition of final judgment, the court would have still been without jurisdiction. That could have been acquired only by service of a writ under the seal of the court, and running in the name of the people of the State of Illinois, or by the voluntary appearance of the defendant; and, when the information was filed, such a writ should have issued returnable on some day of that term. This was the practice under the statute of Anne, from which ours does not substantially differ. Cole on Informations, 200; Commonwealth v. Springer, 5 Binn. 353.

Judgment reversed.

1. RAILROAD-negligence. Where a passenger on a railroad attempts to pass from a train in motion, and not at a station, and is warned not to get off at that place, and the conductor takes hold of him to prevent him from passing from the car, - held, that the passenger is guilty of negligence if he passes from the train, and receives injury thereby.

2. SAME. It is not negligence to run a passenger train on the side track, where it is necessary to permit a freight train too long to run into the side track, to pass, when the evidence shows that such a course was not unusual.

3. VERDICT-against the weight of evidence. Where a verdict is manifestly against the weight of evidence, the court should on motion set it aside and grant a new trial, and failing to do so, this court will reverse for error.

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

William Schiebe brought an action on the case in the St. Clair Circuit Court, against the Ohio and Mississippi Railroad company, to the March Term, 1867.

The declaration contains three counts. The first avers that plaintiff became a passenger on a train of defendant, to be carried from Illinoistown to Lebanon; that, in alighting from the cars with due care, defendant's servants negligently caused the train to be suddenly moved backward, whereby plaintiff was violently thrown to the ground, and his right arm broken.

The second is substantially the same as the first, except it avers that the plaintiff was thrown in the same manner from the train, and its wheels ran over and crushed his right arm.

The third count avers, that defendants ran their passenger train into a side track at the Lebanon station, and, while plaintiff, with due care, was attempting to alight therefrom, defendant's servants carelessly drove the train violently and suddenly backward, whereby plaintiff was thrown to the ground and his right arm cut off. Defendant filed the plea of the general issue.

Opinion of the Court.

A trial was had at the return term before the court and a jury; evidence was introduced by both parties, so much of which as is necessary to a proper understanding of the case appears in the opinion of the court. The jury returned a verdict in favor of the plaintiff, for $3,000.

Defendant entered a motion for a new trial, because the verdict was against the weight of evidence, which the court overruled, and rendered judgment on the verdict. Defendant thereupon prosecuted this writ of error, and urges a reversal, because the court overruled the motion for a new trial.

Mr. H. P. BUXTON, for the appellant.

Mr. JOSEPH B. UNDERWOOD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case brought by appellee, in the St. Clair Circuit Court, against appellants, for negligence in operating their trains, whereby he was injured. It appears that appellee became a passenger at Illinoistown for Lebanon, on a passenger train of appellants. That, on arriving at Lebanon, a freight train, being too long for the side-track, had stopped on the main track, and the passenger train, having slackened up, moved upon the side-track to permit the freight train to pass. As the passenger train started, appellee attempted to get off, and in doing so, fell, and one of his arms was crushed, and was afterward amputated. He insists that the injury was produced by the carelessness of the employees of the company, while they contend that it arose from his own want of care and prudence.

Appellee swears, that, after the train had stopped and was starting again, some one said the train was going to Summerfield, which was the next station. That he thereupon took his baggage and went out upon the platform, and just at that time "the locomotive gave a push backward, and I fell down by the wheels, and the locomotive then went backward and the wheel went over my right arm," and the doctor amputated it. "The

Opinion of the Court.

locomotive came back with great force." "I think a man and his wife got out before me safely; it was forty or fifty yards from the station where I was hurt; I cannot tell whether Lebanon was announced or not; I did not hear it; I did not see any thing of the conductor, or any brakeman when I went to the door of the car, and no one told me not to get out." He says the night was very dark, and in this he is supported by other testimony.

Two witnesses, besides the conductor, testified that the conductor told him not to get off there; that it was not the station. They say they heard the warning. They were just behind him and had started to pass from the car. They say this occurred at the door of the car, and as the conductor met appellee on the platform in coming from the next car. Another passenger in the same car testifies, that, as the crowd

Another

started to go out, he

heard some one at the door say, "We have not got to the station yet;" that it was about the time appellee was hurt. He says he does not know who it was that gave the warning; that he was about the middle of the car.

The conductor testified, that, as he came out of one car to the platform, appellee was coming out of the opposite car with some bundles in his hands; that witness said to him, "Do not get off here; we are not at the station;" but appellee walked along and stepped down on the steps of the car, and that he (witness) took hold of his shoulder and said, "Don't get off here;" but appellee was too heavy for him to hold, in the position which witness then occupied, and he fell. There seems to be no other witness than appellee who testified that there was a violent jerking by the train at the time the accident occurred. Some of the witnesses gave it as their opinion that appellee was under the influence of liquor at the time; but this he denied, and said he had only drunk one glass of beer that day, and that was in the morning.

If the testimony given by appellee was alone considered, the jury might have been warranted in the conclusion at which they arrived; but his testimony is overcome by the testimony of at least four witnesses as to the warning given, "That they