Lewis v. Firemen's Insurance , 1896 Ill. App. LEXIS 51 ( 1896 )

Mr. Justice Waticeman

deliveeed the opinion of the Couet.

It is perhaps to be regretted that in a great city like Chicago the business of courts can not be transacted as it once was in small country districts, where counsel and court, in a most commendable spirit of friendliness, waited for the convenience of each other. If a lawyer was ill, or wished to go fishing, not until he returned to labor was an effort made to force to trial causes in which he was engaged. In this city, he who stands still is run over; one must keep up with the procession, or get out of the way.

The bill of the complainant showed no excuse for the absence of his counsel February 28th, when his “ appeal ” was dismissed.

Counsel promptly gave notice of a motion to reinstate, Avhich motion was set for hearing March 7th. Upon this day, counsel, being ill, prepared a Avritten motion to reinstate the “ cause,” and his affidavit, stating that in consequence of his illness on the day the “ cause ” was dismissed, he had sent his clerk to state to the court that the cause Avas ready for hearing, but that the clerk arrived too late.

This motion and affidavit he, instead of filing, sent with a personal letter, to the judge of the court.

Now the appeal and not the cause was dismissed.

Yet the judge continued the hearing of the said motion to March lAth; and thereafter upon the application of the same counsel, continued it to March 21st, when, for the first time, counsel for appellee appeared in court to call up his motion to reinstate; but neither the motion nor the affidavits, Avhich counsel had never filed, could be found. Thereupon the February term, at Avhich the “ appeal ” Avas dismissed, hawing passed, “ and no motion appearing to have been made during the term to reinstate said cause,” the court refused to reinstate.

The bill presented no case for the interposition of a court of equity.

U o excuse for not filing the motion to reinstate was shown.

The plaintiff was entitled, if such motion was to be considered, to have it entered by the clerk, or filed so that it could be acted upon, and called up by either party.

Sending it to the judge was not equivalent to filing in court. The judge is not the custodian of the files, or the keeper of the records.

Ity the exercise of reasonable diligence, the appeal would not have been dismissed, and a motion to reinstate would have been made at the February term.

A judgment will not be enjoined when, by the exercise of diligence, the party could have presented his cause. Walker v. Shreve, 87 Ill. 474; Mallendy v. Austin, 69 Ill. 15; Fuller v. Little, 69 Ill. 229.

The demurrer to the bill should have been sustained.

The decree of the Circuit Court is reversed, and a decree dismissing the bill will be here entered.