Bonney v. McClelland , 138 Ill. App. 449 ( 1908 )

Mr. Justice Adams

delivered the opinion of the court.

The assignments of error argued by appellant are that the court improperly advanced the cause for trial, and that the nunc pro tunc order of December 29, 1906, is void, for the reason that there was no minute or memorandum on which to base it. Section 16 of the Practice Act in force when the order advancing the cause was made, provides: “All causes shall be tried, or otherwise.disposed of, in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct.” Counsel contend that good and sufficient cause was not shown. Whether the cause should be advanced on the showing made, rested in the sound legal discretion of the court, and the court’s decision cannot be set aside, except for manifest abuse of its discretion. Morrison v. Hedenberg, 138 Ill. 22, 25; Staunton Coal Co. v. Menk, 197 ib. 369, 373.

Thomas S. McClelland, the appellee, is a member of the Chicago bar, and, as such, an officer of the Circuit Court, and the declaration charges him with having forged to a letter written by him, and containing matter libelous on its face, the name of the assistant chief of police of the city of Chicago. '’Such charge was well calculated to injure Ms reputation as a man, and Ms business as a practicing attorney, and if true, disqualified Mm from practicing in the Circuit Court, or continuing to be an officer of that court. Appellee, in his affidavit, expressly denies that he wrote the letter or caused it to be written, or inspired it, and states that he never saw any part of it except the signature, which was exhibited to him by Herman F. Schuettler, the assistant cMef of police, whose name was signed to it; and Mr. Schuettler, as shown by the statement preceding this opinion, deposed that on investigation made by him, by order of the mayor of the city of Chicago, he found not the smallest scintilla of evidence implicating appellee as the author of the letter. It was also relevant for the court to consider that the charge in the declaration was made without oath, and without the personal knowledge of the appellant, who resided in Jacksonville, Florida, when the letter was written. The suit was commenced and the declaration filed July 21, 1906, and appellee’s affidavit states that “the plaintiff is a resident of Jacksonville, Florida, and has not resided in said Cook county smee early in the year 1905.” We cannot hold that the court, m entering the order of November 22, 1906, abused its discretion. There is nothing in the record to show that the cause would not have been reached for trial December 11, 1906, or that it was not reached and called for trial in its regular order on the docket, on that day, and every presumption must prevail in favor of the judgment, in the absence of anything in the record rebutting the presumption.

It is not necessary to the decision of this appeal to pass on the question whether the court had jurisdiction to enter the nunc pro tunc order of December 29, 1906. There is no statute providing that the court, in such a case as the present, shall or may direct the manner of serving notice. Appellant says there is a rule of the trial court so providing; but if there is any such rule, it is not in the record, or any evidence of it, and therefore we cannot consider it. We cannot take judicial notice of the rules of the Circuit Court. Anderson v. McCormick, 129 Ill. 308, 314; 62 Ill. App. 599, 602.

That a sufficient notice was mailed to appellant and handed to him at the post office in Jacksonville, Florida, and that he refused to take it from the office or to sign a receipt for it, is shown by the evidence. Appellant does not deny that he refused to receive the notice, but attempts to excuse Ms refusal, saying’, in his argument, “It is common practice, under this rule, for an attorney to refuse to receipt for such a copy of notice, even after he has read the same.” This may be appellant’s practice, but it is not always safe to measure another’s corn with one’s own half bushel, or another’s conduct by one’s own conduct. The result may prove short. It is unprofessional and discourteous for an attorney to refuse to receive or acknowledge the receipt of a proper notice, and we are pleased to be able to say, from our observation and experience, that such is not the practice of reputable members of the Chicago bar. We do not think appellant is in a position to make any objection in respect to notice. Residing in Jacksonville, Florida, he commenced suit in the Circuit Court of Cook county, and filed a declaration signed in his own name; and he had no agent or attorney in Cook county or in this state, so far as appears from the record, on whom notice could be served. It is significant that although appellant appeared in court by attorney at the term at wMeh judgment was rendered, and therefore in time to move for a vacation of the judgment appealed from, and to support such motion by proper evidence, if any he had, that he had a good cause of action, no such motion or showing was made, and now appellant seeks relief here, which he mig’ht have had, on a proper and sufficient showing, in the trial court.

The judgment will be affirmed.

Affirmed.