Parsley v. Halloran

Mr. Justice Freeman

delivered the opinion of the court.

■ This was an action originally begun before a justice of the peace from whose judgment an appeal was taken to the Superior Court.

■ The case was tried upon the “ short cause calendar,” and the principal contention of appellant’s counsel is that such trial was improper for want of compliance with the statutory requisites.

A motion to strike the case from said “short cause calendar” was denied, and the court subsequently overruled a similar motion at the time the case was called for trial.

The statute requires that in order to place a cause upon the “ short cause calendar,” the plaintiff, his agent or attorney must file “ an affidavit that he verily believes the trial of said suit will not occupy more than one hour’s time,” etc. The trouble in this case is that there does not appear to have been any such original affidavit filed. The notice filed, a copy of which purports to have been left with a clerk in appellant’s office, states that “ an affidavit of which the foregoing is a copy was duly filed in said suit.” But the original of such copy does not in fact appear to have been filed. If it be true that only a copy of the affidavit is on file, the statute was not complied with and the cause was not entitled to a place on the calendar. Donnerstag v. Loewenthal, 77 Ill. App. 159. It is possible, of course, that what is by appellee’s own counsel.in his affidavit of service of notice called a “ copy,” may be in reality an original affidavit. But if so, there is no evidence of it in the record, and we may not presume that counsel did not mean what he says, when he swears it to be a copy.

The case was placed upon the short cause calendar pursuant to the notice and copy of the affidavit filed September 29, 1898; October 10, 1898, the cause was, on motion of the plaintiff, continued, and it was called for trial November 21,1898. The statute provides (Chap. 110, Sec. 68) that a suit upon the short cause calendar “ may be passed or continued for good cause shown the same as other suits; and if so passed or continued it shall lose its place upon such calendar, but may be again placed thereon.” A continuance operates to remove a case from the short cause calendar audit can only be replaced thereon by filing a new affidavit and giving new notice in accordance with section 95 of the same chapter. Gudgeon v. Casey, 62 Ill. App. 599.

The judgment of the Superior Court is reversed and the cause remanded.