Hearson v. Carleton P. Graudine.

• Decision Date: 30 September 1877
• Citation: 87 Ill. 115,1877 WL 9818
• Parties: WILLIAM HEARSON et al.v.CARLETON P. GRAUDINE.
• Court: Illinois Supreme Court

87 Ill. 115

1877 WL 9818 (Ill.)

WILLIAM HEARSON et al.

v.CARLETON P. GRAUDINE.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. S. K. DOW, for the appellants.

Messrs. MCCAGG, CULVER & BUTLER, for the appellee.

Mr. JUSTICE SCOTTdelivered the opinion of the Court:

This action was brought on a promissory note, made by defendants to James H. Scott, and by him assigned to plaintiff.With the general issue notice was given that defendants would prove, on the trial, facts showing a failure of consideration, and that the note had been assigned to plaintiff after it became due, and that he took it with full knowledge of the defenses that existed.

It is recited in the record, that both parties appeared by themselves and counsel, and that a trial was had before a jury, which resulted in a verdict for plaintiff.The bill of exceptions, however, shows the cause was tried in the absence of counsel for defendants.A motion for a new trial was made, on the ground defendants were unable to make their defense to the action, on account of the absence of counsel employed by them, and upon whom they had confidently relied to present it for them.Affidavits were filed in support of the motion, from which it appears, that when the cause was called defendants' counsel, whom they had employed, was engaged in the United States Court in arguing a preliminary motion in a cause pending in that court.

We must take judicial notice that a number of courts of original jurisdiction are held in the city of Chicago in as many different rooms, and as they may all be in session at the same time, much difficulty may be experienced by counsel having business in the various courts.As a means of providing against the difficulties arising out of the fact the same counsel may have cases coming on to be heard at the same hour in more than one of these courts, a rule has been adopted, which provides that “when the principal attorney is sick or actually engaged in the trial of a cause in some other court at the same time the cause is called for trial, and the adverse party is ready for trial, the court will pass the cause for the time, without prejudice, in all cases where it appears, by affidavit or otherwise, that the party seeking the delay has used due diligence to be ready for trial, and would have been ready but for the sickness, absence or engagement of his attorney; but where the delay is at the instance of the defendant, it shall also appear, by affidavit, that there is a meritorious defense to the suit, and setting forth in what it consists--in which case the cause may be delayed or continued, as the court shall direct.”It is not claimed there had been any compliance with this rule, so as to entitle the party asking it to have the cause delayed on account of the absence of counsel.All that was done was to notify the judge presiding, by note, and perhaps otherwise, that counsel was then employed professionally in another court.It was defendants that desired delay, and no affidavit was filed showing they had a meritorious defense to the action, setting forth in what it consisted.No doubt, this rule was adopted for the convenience of attorneys practicing in the several courts, that they might be able to attend to the causes of their constituents although pending in different courts, and for that purpose it may be as good a one as could be adopted; but it ought not to be so construed as to deprive a party of a meritorious defense, if he may have one, to an action against him, as, in this case, a defendant might not be able to learn that his counsel, to whom he had intrusted the preparation and management of his defense, would be elsewhere professionally engaged when his cause would be called.After learning that fact, no time might remain to secure other counsel.Such party would be deprived of his defense, and his remedy, if any, would be against his attorney for neglecting his engagement.The fact counsel was absent, was no fault of defendants.It is the same to them as though their attorney had been detained by inevitable accident; and where a party has a meritorious defense to an action against him, and is deprived of the privilege of making it, on account of the unexpected absence of his attorney, without fault on his part, it is but just, if he makes his application in time, to permit him to make his defense, on such terms as shall appear to the court to be equitable.Any other rule might work very grave hardships, and, it may be, injuries, for which the law, in many instances, would afford no sufficient remedy.In the case at bar, defendants omitted no duty, and were diligent in preparing to make their defense.One of them was in court, was ready for trial had his attorney been present, and he made every possible effort to get him in court.Within a half an hour after the case was called, his attorney came into court, and asked to be permitted to try the cause, but was denied that privilege.Every one against whom an action is pending, is entitled to his day in court, where he may be heard in his defense, by himself and counsel, and...