{
  "id": 5402147,
  "name": "Phoebe Colvin, Appellant, v. City of Roodhouse, Appellee",
  "name_abbreviation": "Colvin v. City of Roodhouse",
  "decision_date": "1917-07-14",
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  "first_page": "582",
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    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T14:33:48.967362+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Phoebe Colvin, Appellant, v. City of Roodhouse, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Thompson\ndelivered the opinion of the court.\nThis is an gction on the case begun on August 25, 1916, by Phoebe Colvin against the City of Eoodhouse to recover for personal injuries averred to have been received by her on August 2, 1916, because of the negligence of defendant in permitting a sidewalk to be and remain in an unsafe and dangerous condition whereby she was injured while in the exercise of due care. The declaration does not contain any averment that prior to the institution of the suit any notice had been filed with the city officials as is required by section 7 of the Personal Injuries Act (J. & A. \u00b6 6190). The case was tried before a jury September 8, 1916. After the evidence had'been closed and the opening argument made by counsel for plaintiff, the defendant entered a motion \u201cto dismiss suit and for judgment in bar of action because no notice of injury had been given as required by statute, and that such notice was not averred and proved,\u201d and requested the court to give a peremptory instruction to find the defendant not guilty. Thereupon the plaintiff entered a cross motion for leave fo take a voluntary nonsuit. The court denied the cross motion and gave the peremptory instruction requested by defendant, in pursuance of which the jury returned a verdict of not guilty. A motion for a new trial on the ground that the court erred in overruling the cross motion was denied and judgment entered on the verdict. The plaintiff appeals.\nThe only question involved is the ruling of the court .in denying the motion of plaintiff for leave to enter a voluntary nonsuit. Section 70 of the Practice Act, as amended in 1907, reads as follows (J. & A. \u00b6 8607): \u201cEvery person desirous of suffering a nonsuit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.\u201d This provision of the Practice Act, so far as it affects cases tried by a jury, has remained unchanged since 1819. The words in italic were added in 1907, and are only applicable to cases tried by the court without a jury. It was held under the act before the amendment of 1907 that the plaintiff was entitled to take a nonsuit, in cases wherein motions for peremptory instructions were made, provided he elected to do so prior to the reading of the peremptory instructions to the jury (Berry v. Savage, 3 Ill. (2 Scam.) 261; Howe v. Harroun, 17 Ill. 494; Brown v. Lawler, 130 Ill. App. 540); and the same has uniformly been held to be the rule since that amendment was made (McMechen v. Chicago B. & Q. Ry. Co., 166 Ill. App. 150; Daube v. Kuppenheimer, 195 Ill. App. 99). The court erred in overruling the cross motion of appellant and in giving the peremptory instructions requested by appellee. The judgment is reversed and the cause remanded with instructions to the trial court to grant the cross motion of appellant for leave to enter a nonsuit.\nReversed and remanded with directions.",
        "type": "majority",
        "author": "Mr. Presiding Justice Thompson"
      }
    ],
    "attorneys": [
      "Whiteside & Wright, for appellant.",
      "Thomas Henshaw, for appellee."
    ],
    "corrections": "",
    "head_matter": "Phoebe Colvin, Appellant, v. City of Roodhouse, Appellee.\nDismissal, nonsuit and discontinuance, \u00a7 14 \u2014when motion to enter voluntary nonsuit is improperly denied. Under the Practice Act, sec. 70 (J. & A. \u00b6 8607), providing that every \u201cperson desirous of suffering a nonsuit shall he-barred therefrom unless he do so before the jury retire from the bar,\u201d a plaintiff is entitled to take a nonsuit, in a case where a peremptory instruction is requested on a trial before a jury, where he makes a motion for leave to take a voluntary nonsuit immediately after the defendant requests a peremptory instruction and before the court gives the peremptory instruction.\nAppeal from the Circuit Court of Greene county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1917.\nReversed and remanded with directions.\nOpinion filed July 14, 1917.\nWhiteside & Wright, for appellant.\nThomas Henshaw, for appellee.\nSee Illinois Notes Diffest, Vols. XI to XV, and Cumulative Quarterly, samo topic and section number."
  },
  "file_name": "0582-01",
  "first_page_order": 626,
  "last_page_order": 628
}