William F. Mehlenbeck, Appellant, v. John Steitz, Appellee.

Gen. No. 5,867.

(Not to be reported in full.)

Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.

Heard in this court at the October term, 1913.

Affirmed.

Opinion filed April 15, 1914.

Statement of the Case.

Action by William F. Mehlenbeck against John Steitz to recover fifty dollars claimed to have been loaned by plaintiff to defendant. Suit was originally brought before a justice of the peace where plaintiff recovered a judgment. An appeal was taken to the Circuit Court where defendant had verdict and judgment. From the judgment of the Circuit Court, plaintiff appeals.

Clarence W. Heyl, for appellant.

C. E. McNemar, for appellee.

Abstract of the Decision.

1. Assumpsit, action op, § 89 * —when evidence insufficient to establish loan. In an action for money loaned, where the defense was that the money was not loaned to defendant but that he received it from a third party who had received it from the plaintiff, and that defendant had repaid such third party, held that a verdict for defendant was not against the weight of the evidence.

2. Appeal and error, § 613 * —when errors not urged in motion for new trial waived. Errors in instructions given not mentioned in written grounds for motion for new trial are waived. Section 81 of the Practice Act, J. & A. ¶ 8618, obviating the necessity of an exception, does not affect the rule.