Culver v. Colehour , 115 Ill. 558 ( 1886 )

Mr. Justice Scholfield

delivered the opinion of the Court:

The ground upon which the motion to vacate and set aside the decree of the 24th of June was based, was an oral statement made in court by Culver, and by agreement of parties accepted as his affidavit, to the effect that he was not present at the hearing because of his actual and necessary engagement at the Circuit Court of the United States, at the same time, in arguing and resisting an application by the United States of America for an injunction against the Chicago ball club and the city of Chicago.

The bill of exceptions shows that on the 16th of April, A. D. 1884, Culver being present in court at the time, the court set this cause down for hearing on Monday morning, June 23, A. D. 1884, on witnesses then to be examined and cross-examined in open court. At the time thus set for hearing, the petitioner announced to the court his readiness to proceed, but Culver was not present, and on a representation being made by his clerk to the court that he was then actually engaged in an argument of a motion for an injunction in tfie Circuit Court of the United States, the court announced that, inasmuch as the argument for an injunction in the United States Court could not continue through the entire day, the case would then be passed, another case be taken up for trial, and this case be again called after the termination of that trial, and the court gave notice that, inasmuch as the judge could not watch the progress of trials in the United States Circuit Court, it would be necessary for some one representing Culver, to be constantly present in court if any further postponement should be desired. After the noon recess, the law partner of Culver appeared in court and represented to the court that although Culver had not, up to that time, been actually engaged in the United States Circuit Court, yet that he had been employed to resist an application by the United States of America for an injunction against the Chicago ball club and the city of Chicago, which application he had been notified would be made on that day, and it was expected to be heard by the court as soon as the court should dispose of pending motions in other eases. The counsel for the petitioners then informed the court that he had been twice in the United States Circuit Court during the day, and left there at fifteen minutes before two; that then the judge was only about half through with his motions, and it was not probable that Culver’s case would be reached that afternoon; that the witnesses for the petitioner were all present ; that having come fourteen miles, and one of them being a justice of the peace, having public duties to perform at his office, it would be very inconvenient and burdensome to keep them there for the day. The law partner of Culver informed the court that the case in the United States Circuit Court was more important to the clients of Culver than this case was to Culver, and that he would not he present in the court during that afternoon. The court' thereupon announced that the case would be taken up on the next morning (Tuesday, June 24, A. D. 1884,) after concluding the trial that was then pending, and that if Culver should then desire a further postponement of the hearing on account of his actual engagement in the trial of his motion before the United States Circuit Court, it would be necessary for him to have some one present in court when the case should be called, to notify the court of that fact; that it would not be enough that he was expecting his motion to come up,—the ease could not be postponed except • for actual engagement in the matter of the motion. On the next morning (June 24, A. D. 1884,) Culver’s clerk appeared in open court and moved for a postponement of the ease for reasons alleged in the affidavit of Culver then filed. This affidavit merely stated that he would be in attendance in the United States Court during that day, to resist the application for injunction, and that the judge of that court had, on the day before, announced that that application would on that morning have precedence of all other cases. The court adjudged the affidavit insufficient, but announced that there was another matter which would require its attention for a while, and that when that should be concluded this case would be taken up, and if Culver then desired a further postponement of the hearing, it would be necessary for him to have some one present to show to the court that he was then actually engaged in the matter of his motion in the United States Circuit Court. The matter then occupying the attention of the court was not disposed of until the noon recess. At that time the court announced that this case would be the first to be taken up at the expiration of that recess,—at two o’clock P. M. At that hour the case was called, the judge inquiring in loud and distinct tones, which were heard all over the court room, whether any one was present representing Culver, and no one answering. The trial had progressed about twelve minutes when a statement was madé to the court that Culver was then actually engaged in the matter of his motion before the United States Circuit Court, and, soon after, this was confirmed by a statement of Culver’s clerk, made in open court, but the court proceeded with the trial.

It is impossible to perceive any abuse of the discretion vested in the court in this action. The requirement that to obtain a postponement of the hearing it was not sufficient to show merely that the attorney was expecting a case to be called, but that it must be shown that he was, at the time, actually engaged, was most reasonable. If the mere expectation were held sufficient, then it would be often entirely within the discretion of the attorney whether he would, at a given time, try a case in the Superior Court or not, for the word “expectation” implies such indefiniteness and want of precise limitations, that in most cases it would be difficult, and in many impossible, to raise an issue upon an application of that kind. Had Culver employed some one to look after his case in the United States Court, he might easily have tried this case before that was peached. The petitioner and his witnesses ought not to be put to inconvenience or expense merely that Culver might earn a fee in another cáse, or, if his presence in that case was indispensable to prevent irreparable loss to his clients, he ought to have made arrangements in advance for some one to represent him in this case. He knew from the 16th of April, more than two months before the day set for the hearing, when this hearing was to occur. How long before that time he knew that the application for an injunction would be made on the same day, does not appear, but we may assume, for the contrary was not shown, that it was in ample time to have made arrangements for other counsel in one case or the other, or to have made some arrangement whereby the one case or the other sho.uld be postponed to avoid a conflict in the hearing. Cases brought in the Superior Court are as much entitled to a speedy trial as those brought in the United States Circuit Court, and the rule adopted and enforced in this case in the former court, if reciprocated in the lower court, is probably the fairest to counsel practicing in both courts that can be devised; but even if it be not reciprocated, no principle of justice to suitors in the Superior Court will admit of a more onerous rule upon them.

This case is not analogous to Hearson v. Graudine, 87 Ill. 115, to which we are referred in the argument of counsel. That case was decided on a rule of court read in evidence, which does not here appear to have been given in evidence. But even if it had been, in that case it was shown the defendant had a meritorious defence, and that he was guilty of no fault in the delay sought, whereas, here it is not shown that the defendant has proof to overcome the evidence in respect to the summons given in evidence on the hearing, or that a different result must be reached upon another hearing, nor do we think that he has shown reasonable diligence to be present at the hearing.

An objection is urged, based upon Archer v. Spillman, 1 Scam. 553, Ware v. Nottinger, 35 Ill. 375, and Hermann v. Pardrige, 79 id. 471, that the Superior Court erred in proceeding with the hearing without calling a jury. The right of trial by jury recognized in those cases is as it existed at common law. This is not a common law proceeding, but a proceeding under chapter 116 of the Revised Statutes of 1874, and a j ury trial is neither contemplated by it nor indispensable to the relief here decreed. Petition of Ferrier, 103 Ill. 367; Ward v. Farwell et al. 97 id. 593; Heacock v. Hosmer, 109 id. 245.

The judgment is affirmed.

Judgment affirmed.