Janeway v. Burton

Mr. Justice Ball delivered the opinion of the court. The motion to strike the appeal bond from the record and to dismiss the appeal herein was reserved to the hearing. That motion is overruled. Appellants’ first point is that as suits on open accounts are outlawed in Illinois in five years, and in Rew Jersey, where appellants have lived since 1889, in six years, and as this suit was not begun until more than eight years after entry of judgment in the replevin suit, it is barred by the statute of limitations. The object of the law-making power in enacting section 18, Ch. 83 R. S., entitled “ Limitations,” was to favor the resident as against the non-resident; to relieve the former from the necessity of following the latter into other states and countries, and there bringing action, under penalty of losing his debt by the running of the statute of limitations. Story v. Thompson, 36 Ill. App. 370-373. It is admitted that appellants prior to and at the time of the entry of the replevin judgment were, and ever since have been, non-residents of this State. It is true that the cause of action accrued more than five years before the commencement of this suit; but the fact that appellants were and are non-residents, brings the case within the exception provided for in section 18. Hubbard v. U. S. Mtg. Co., 14 Ill. App. 40-49; Story v. Thompson, supra. Appellants’ second point is that a new trial should have been granted on the ground of newly discovered evidence, as set forth in the affidavit of Henry A. Tilton. On the written motion for new trial in the court below the ground of newly discovered evidence is not stated as a reason Avby the verdict should be set aside. Both the court and opposing counsel had the right to suppose that the six points filed bj1" appellants upon this motion included all they relied upon in support thereof. The grounds or reasons having been specified, all others are waived. This court can not consider an objection which was not urged below. (Jones v. Jones, 71 Ill. 563; The Ottawa, etc., v. McMath, 91 Ill. 104-111; West Chi. St. Rd. Co. v. Krueger, 168 Ill. 586.) The affidavit is made upon information and belief. Such a motion must be supported by affidavits of the witnesses by whom it is proposed to prove the facts relied on, or some excuse must be shown for not obtaining them. (Emory v. Addis, 71 Ill. 273-275.) Neither of these requisites appear in the record. The testimony sought to be produced is as to the value of the goods replevied. .The value of these goods was the main contention in the trial. Such evidence is merely cumulative, and therefore not ground for a new trial. Blake v. Blake, 70 Ill. 618-626; Chandler v. Smith, 70 Ill. App. 658. Appellants’ third point is that the amount of the judgment is excessive. This question was fought out in the trial. There is ample evidence in the record, if believed, to sustain the verdict. The jury found the appellee’s damages, and the learned .judge, who presided at the trial, approved of that finding by overruling the motion for new trial and by directing the entry of judgment. We can not say that the verdict is manifestly against the preponderance of the evidence. Appellants’ last point is that the judgment can not be sustained because the record does not show the date of the replevin judgment, “ hence it might have been after the suit at bar was commenced.” The supplemental record shows that this replevin judgment was entered September 26, 1893. The suit at bar was commenced in February, 1901. Hence this point must be ruled against appellants. The judgment of the Superior Court will be affirmed.