City of Elgin v. Nofs

• Decision Date: 24 October 1904
• Citation: 72 N.E. 43,212 Ill. 20
• Parties: CITY OF ELGIN v. NOFS.
• Court: Illinois Supreme Court

212 Ill. 20

72 N.E. 43

CITY OF ELGIN

v.NOFS.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, Second District.

Action by Louis F. Nofs against the city of Elgin. From a judgment in favor of plaintiff, affirmed by the Appellate Court after remittitur (113 Ill. App. 618), defendant appeals. Affirmed in part.R. N. Botsford and Charles H. Fisher, for appellant.

Russell & Hazlehurst, for appellee.

RICKS, C. J.

Appellee obtained a judgment against appellant in the circuit court of Kane county for $20,000 for personal injuries alleged to be due to the negligence of appellant in the care of its sidewalk. An appeal was prosecuted to the Appellate Court for the Second District, and that court required a remittitur of $5,000, taking the view that the damages were excessive, and in all other respects affirmed the judgment of the circuit court, and from that judgment this appeal is prosecuted.

No question arises or is made upon the instructions. None was given for the appellee. Twenty-one were given at the request of appellant, and two that were requested were refused, but no complaint is made concerning the same. The only question of law—and such matters alone are open to our consideration—relates to the refusal of the court to grant a continuance on account of the sickness of a portion of the counsel for appellant, and complaint is made with reference to the admission of certain evidence, the limiting by the court of the argument of counsel, the requirement of the court that the cause should be argued in the evening of the day upon which the evidence was closed, and the judgment of the Appellate Court as to costs.

The case has been three times tried in the circuit court, and the verdict in each instance was for appellee. The first was for $10,000, the second for $15,000, and the third for $20,000. It has been three times to the Appellate Court (96 Ill. App. 291; 103 Ill. App. 11; 113 Ill. App. 618), and has once before been before this court (200 Ill. 252, 65 N. E. 679).

When the case was called for trial, appellant entered its motion to continue the same, or to postpone the hearing thereof to a future day, because of the illness of R. N. Botsford, special counsel, and Charles H. Fisher, corporation counsel, for appellant. It appears from the record that the trial was entered upon on the 18th day of February, 1903; that on the 9th of February application was made by appellant for a change of venue, and that the attorneys appearing to make that motion on the part of appellant were Fisher & Mann, Botsford, Wayne & Botsford, and Aldrich & Worcester; that on the 16th of February the same attorneys were present at the consideration of the motion for a change of venue, when the same was overruled; that on the 18th the motion for a continuance because of the illness of two of the above-named attorneys was made by appellant and overruled, and the cause set for immediate hearing; and that at and during the trial there appeared for appellant J. P. Mann, C. H. Wayne, and N. J. Aldrich.

We think the evidence fairly and sufficiently shows that Attorneys Botsford and Fisher were in such state of health that it was not proper that they should try the cause, but we think also that the evidence failed to show that appellant was or could be injured thereby. Neither of the affidavits states that appellant had a meritorious ground of defense to the action. One states that Botsford was the leading counsel and had charge of the case at the former trials, and the other that Fisher was corporation counsel; and the affidavits also state that the former judgments were set aside, but do not state upon what ground, nor do they state any ground of defense. For all the court could know, the reason for setting aside the former judgments by this and the Appellate Court was solely for errors of the court, and not for lack of sufficientevidence to sustain a verdict. At all events, the mere statement that the former judgment had been set aside did not sufficiently show that appellant had a meritorious or substantial defense to the cause of action, and before delay can be indulged it must appear that there is such a defense, and that the applicant will be prejudiced in presenting it unless the application be granted. The above rule is of such general application that it has been enforced in criminal as well as civil cases. Steele v. People, 45 Ill. 152,Mills v. Bland's Executors, 76 Ill. 381. Neither of the affidavits stated that the remaining counsel were unable to fairly and fully present whatever defense appellant had. The partners of both Botsford and Fisher were in the case, and remained and conducted the trial in conjunction with Mr. Aldrich. The case had been previously tried twice and records made of such trials, and, in the absence of some specific allegation in the affidavits showing why the remaining attorneys were unable to fairly present appellant's defense, the court is not warranted in reaching the conclusion that they could not do so. Dacey v. People, 116 Ill. 555, 6 N. E. 165. The motion for continuance was not based upon a statutory ground, but upon a ground that, where it appears clearly from the evidence that injury is likely to result from a refusal of it, a trial court, in the exercise of a sound discretion, will grant it; but being a matter within the discretion of the court, unless the court of review can see that there was an abuse of that discretion, a judgment otherwise fair upon its face will not be reversed. Condon v. Brockway, 157 Ill. 90, 41 N. E. 634. An inspection of the record discloses that every ground of defense that appellant could interpose to this action was urged, and the jury fairly and fully instructed upon the law of the case, and in such state of the record we are not able to say that the trial court abused its discretion in denying the application.

The sidewalk on which the injury was incurred was upon a bridge crossing the Fox river, which the evidence shows had become so old and in such state of repair that a new bridge was deemed necessary, and was, in a sense, under way of construction. The deciaration contained the averments that the stringers of the walk were ‘old, rotten, loose, decayed, worn, and broken,’ and that the planks were ‘loose, broken, old, decayed, worn, rotten, unfastened, and misplaced,’ and that appellee ‘stepped upon, along, and against a portion of said old, broken, unfastened, misplaced, and decayed sidewalk, and was thereby thrown,’ etc.

A number of witnesses testified that in the immediate vicinity of the place where appellee was injured, and at and near to the time of his injury, the stringers were rotten and decayed, the planks worn,...