Siebert v. Sportsman's Park & Club ( 1897 )

Biggs, J.

The plaintiff sues in this action for the value of certain materials which he sold and delivered to the Sportsman’s Park and Club (a corporation), to be used by it in the construction of an improvement on certain leasehold premises, and he also, sought to enforce a mechanic’s lien against the building and the leasehold. The land belonged to the estate of Jemima Lindell, deceased, and the Sportsman’s Park and Club occupied it under a fifteen year lease. The executor of Mrs. Lindell was made a party defendant. The answer of both defendants was a general denial. The cause was assigned to division number 1 of the circuit court. It was docketed for trial on March 2, 1897. On that day a change of venue was awarded to division number 6 of the circuit court. The application for the change was made by the defendant corporation. On the fourth of the month the case was tried in division number 6. It is stated in the bill of exceptions that no one appeared for the Sportsman’s Park and Club, but the judgment entry recites that all parties appeared to the action. The trial resulted in a judgment in favor of plaintiff for the debt, but the finding was against him as to the lien. The Sportsman’s Park and Club alone has appealed.

* EW naIt is argued that the circuit court committed error in refusing to grant a new trial because the appellant was unrepresented at the trial, by reason of a promise or assurance of the judge presiding over division number 1, that the case would be reset and would not be tried on the day it appeared on the regular calendar. In support of the motion for new trial the appellant filed affidavits which set forth in substance that in the latter part of February, 1897, the attorney for appellant made an application for a continuance to the judge of division number 1, where the cause was then pending; that the reasons assigned for the continuance were that the president of the appellant was an important and material witness, that at the time the case was set for trial he was compelled to be absent from the city on other important business, and that it was not practicable to take his deposition; and that the attorney to whom appellant had entrusted the defense of the case, was also compelled to be absent on the same business; that the continuance was refused, but the judge assured the attorney that under the circumstances the case would not be tried during their absence; that when the case was reached on the call, the attorney for the executor called the attention of the judge to the promise made by him to reset the ease; that no attention was given to the suggestion, and that thereupon another attorney who represented the appellant filed the application for a change of venue. Under these facts it is claimed that the trial judge ought to have awarded a new trial.

If appellant had appeared in division number 6, and had applied for a postponement of the case for the reasons stated, and the court had declined to do so, then appellant would have been in a position to complain. As it is, it remained silent, allowed the time of the court to be consumed in a trial, and at its conclusion urged that the case be reopened because the judge of division number 1 had disregarded his promise to reset the case. This conduct on the part of appellant is sufficient of itself to justify us in affirming the judgment, without considering the many technical objections that could be urged against the defendants’ contention. With the concurrence of the other judges the judgment of the circuit court will be affirmed. It is so ordered.