Harlev v. Harlev

Mr. Justice Gary delivered the opinion of the Court. Armour & Co. sued out, upon a judgment in their favor, against William Harlev (senior) and Alfred Harlev, garnishee process against the Griffith & McDermott Construction Co., who answered, stating a purchase of property from Alfred Harlev, acting for himself and William Harlev (senior), as a firm named William Harlev & Son, and that the appellee claimed the price of the property. The result was that the appellee came in under the provisions of sections 11 and 12 of chapter 62, Garnishment, as an adverse claimant of the fund. He stated a purchase of a building which was part of the property, from the firm, and a chattel mortgage from them, and, as a witness, testified that the firm owed him $1,722.91, and for the building he allowed $175 as payment, and took a chattel mortgage on other property to secure the residue. Among the mortgaged property were some wheel-barrows, also sold to the garnishees. Whether the appellee’s claim was based upon a truthful statement of the facts, was a question for the jury. The verdict can not be disturbed on the evidence alone. On the trial the appellants asked leave to file what they presented as a sworn copy, by affidavit attached, of an original answer—as they called it—filed by the appellee, and lost from the files, for the purpose of using it as evidence. If any portion of the record of a cause is lost, the court may restore it on the application of a party interested; but a party opposed in interest should have reasonable notice, and an opportunity to ascertain whether the loss is to be supplied truly. Harris v. Lester, 80 Ill. 307. It was not error in the court to deny the offer to file, as part of the record, matter presented as this was. Had the appellants proved by a witness, subject to cross-examination, the fact of loss and the correctness of the copy, they might have used the copy as evidence, if its contents were mal,erial on the issue to be tried. The points argued by the appellants are, as to that supposed copy—refusals by the court to peremptorily instruct the jury on the facts—and the refusal to grant a new trial on account of newly discovered evidence. We have already said sufficient about the facts. Even if the supposed newly discovered evidence were material, and not cumulative, it does not appear that there was any diligence in looking for it before the trial. The judgment is affirmed.