Dunlap v. Davis , 10 Ill. 84 ( 1848 )

The Opinion of the Court was delivered by

Treat, C. J.

The Circuit Court committed no error in refusing the motion for a continuance. The defendants were entitled to a trial of the case, unless the plaintiff disclosed sufficient cause for the postponement. He was bound to show that he had made reasonable exertions to prepare for the trial, without success, or some good reason for not making such exertions. The affidavit fails to. make out a case of diligence on his part, or to furnish any satisfactory excuse for omitting preparations for the trial. Being the indorsee, he was, as a matter of course, entitled to the possession and Control of the bill of exchange. He voluntarily placed it in the hands of his attorney in 8t. Louis, to be used in a suit against an indorser. He still retained the control of the instrument, and could at any moment withdraw it from the custody of his attorney. If is true that the law allowed him to prosecute separate actions against the parties to the bill, but the fact that different suits were pending, furnished no good reason for not producing it in this case, unless there was at the time a real necessity for using it elsewhere. It is apparent from the affidavit that it might have been withdrawn without the slightest prejudice to his interests in the suit pending against the indorser, and that by the exercise of reasonable diligence, all occasion for a continuance would have been avoided. The evidence was not beyond his control, nor was he prevented by unavoidable circumstances from producing it. His failure in this respect was the result of his own negligence, and he must abide by the consequences.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.