Anderson v. McCormick
| Decision Date | 15 June 1889 |
| Citation | 129 Ill. 308,21 N.E. 803 |
| Parties | ANDERSON v. McCORMICK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Cook county; ELLIOTT ANTHONY, Judge.
Augustus N. Gage, for appellant.
W. T. Burgess, for appellee.
This was a suit in ejectment brought by Cyrus H. McCormick, Jr., against Mary Dunne and Ada M. Dunne, now Ada M. Anderson, to recover possession of lot 49 of Henry H. Walker's resbdivision of blocks 12 and 13 of S. F. Simth's subdivision, in the N. W. 1/4 of the N. E. 1/4 of section 18, township 39 N., of range 14 E. of the third principal meridian. The plaintiff, by his declaration, claimed an estate in fee in said premises. Both defendants pleaded not guilty, and defendant Mary Dunne filed a further plea denying that she was in possession on the premises demanded at the time of the commencement of the suit, and disclaiming all title and interest therein, and the suit was thereupon dismissed as to her. A trial was had as to the other defendant at the January term, 1889, of the superior court, resulting in a verdict finding the defendant guilty, and also finding that the plaintiff had an estate in said premises in fee. The defendant entered her motion for a new trial, which was overruled, and judgment was entered upon the verdict in favor of the plaintiff for the recovery of said premises, and for costs. From that judgment the defendant has appealed to this court.
It is claimed that the superior court improperly tried the cause out of its order on the docket, and such action of the court is assigned for error. It appears that on the 18th day of December, 1888, that being one of the days of the December term, 1888, of said court, the cause was tried by a jury, and a verdict rendered for the plaintiff. A new trial was granted, as is now claimed, on account of an informality in the verdict, and on the 9th day of January, 1889, that being one of the days of the January term, 1889, of said court, another trial was had resulting in a verdict finding the defendant not guilty. This verdict was also set aside, and a new trial granted by the court, and the cause was, at the same time, by order of the court, set for trial on the 14th day of the same month, that being one of the days of the same term, or as soon thereafter as counsel could be heard. On the 12th day of January, 1889, the defendant filed her petition for a change of venue on account of the prejudice of the judge before whom the cause was pending, and the cause was thereupon transmitted by said judge to another judge of the same court for trial, where it was placed on the list of causes subject to trial January 15, 1889. On the 16th day of said month the defendant appeared by her counsel before the last-named judge, and entered her motion to strike said cause from the list of cases set for hearing January 15, 1889, and to place the same on the calendar, and, in support of said motion, read an affidavit stating, in substance, that said cause was inserted in the trial calendar of the court after the same had been made up, as No. 2,361 1/2; that it was regularly reached on the call of the calendar, and sent to the judge before whom it was first tried about December 7, 1888, and was there set for trial December 18, 1888; that on that day and the day following it was tried, and a verdict found for the plaintiff; that said judge, after overruling the defendant's motion for a new trial, ordered a new trial on account of a defect in the verdict, and set the cause for another trial on the 2d day of January, 1889, contrary to the defendant's request that it be placed upon the next trial calendar; that the trial was postponed at the instance of the plaintiff until January 9, 1889, when a trial was had resulting in a verdict for the defendant; that said verdict was immediately set aside, and the cause set for another trial on the 14th day of the same month, against the defendant's request and wishes; that the change of venue was thereupon taken, and, after the cause was sent to another judge, an application was made to him to have it placed on the trial calendar, to be reached in its regular order, which application was refused; that there was then a large number of cases pending in said court which had, and of right ought to have, precedence over this, in many of which both sides were ready for and desired an immediate trial; that there were then still on the trial calendar of said court several hundred cases that were awaiting trial, and had not then been reached; that the defendant had already had one trial at said term, resulting in a verdict in her favor, and that she desired to have the cause placed on the regular calendar. The defendant's motion was overruled the day it was made, and an exception to said decision was duly preserved. Two days afterwards the cause was called for trial, and the trial was entered upon without any objection on the part of the defendant, either on the ground that the cause was being called for trial out of its proper order on the docket, or otherwise.
We cannot say that any error was committed by the court in refusing to enter an order placing the cause on the trial calendar of the court. It appears that such a calendar had been prepared for a previous term, and was still in use; several hundred cases on it not having then been reached for trial. On that calendar this case had already a place and a number, and while it is alleged that it was placed there after the calendar was completed, it is not claimed that that was improperly done. So far as appears, it may have been accidentally omitted, and inserted in its proper numerical position after the omission was discovered. So long as it had a place on the calendar, there could be no occasion, so far as we are able to see, for giving it a new place or a new number. Doubtless the question might have been raised whether, after having been reached and tried, the defendant was not entitled to have it passed until all the cases below it on the calendar had been reached and called, but that was not the question presented to the court by the defendant's motion. Moreover, it does not appear that any new calendar for the use of said court was in course of preparation or contemplated, nor are we informed as to the rules under which the court caused its trial calendars to be prepared. The statute requires the clerks of all courts of record to keep dockets of all causes pending in their courts, and it further provides that all causes shall be tried or otherwise disposed of in the order in which they are placed on the docket, unless the court, for good and sufficient reasons, shall otherwise direct; it being provided, however, that in counties where two or more judges shall be holding two or more branches of the same court at the same time, two or more trial dockets may be made, making distribution of the causes among the several dockets so as to place causes of a particular class on each docket. Rev. St. c. 110, §§ 15-17. If the trial calendar of the superior court is a list of causes different in its nature...
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