Jensen v. Fricke

• Court: Illinois Supreme Court
• Writing for the Court: SHOPE
• Citation: Jensen v. Fricke , 133 Ill. 171, 24 N.E. 515 (Ill. 1890)
• Decision Date: 14 May 1890
• Parties: JENSEN et al. v. FRICKE et al.

133 Ill. 171

24 N.E. 515

JENSEN et al.

v.FRICKE et al.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from superior court of Cook county; ELLIOTT ANTHONY, Judge.

Edwaid T. Cahill, for appellants.

B. W. Ellis, for appellees.

SHOPE, C. J.

This was a suit in debt, brought by appellees against appellants, in the superior court of Cook county, May 24, 1889. On the 13th day of January, 1890, plaintiffs therein moved the court, and the court, over the objection of defendants, placed the cause on the short cause calendar for Monday, January 20, 1890. No objection is urged that the affidavit and notice filed in support of said motion were not in literal compliance with the statute. On the 20th of January, 1890, the cause was called on such short cause calendar, and the defendants appeared, waived a jury, and submitted the cause to the court for trial, without objection. The trial resulted in a finding for plaintiffs' debt, $200, to be satisfied upon payment of $119 damages. Motion by defendant for a new trial was overruled, and exception taken, and judgment rendered in accordance with the finding. The questions raised on the record relate to matters of practice; and reliance is chiefly placed on the invalidity of the act of June 1, 1889, in force July 1, 1889, entitled ‘An act to expedite the trial of certain suits at law in courts of record,’ to sustain the errors assigned. Laws 1889, p. 222.

It is, however, first insisted by counsel, in argument, that the act in question is in conflict with sections 14-16 of the practice act, which provide that the clerk shall keep a docket giving the criminal cases precedence, setting all others down in the order of their commencement, and that such ‘cases shall be tried, or otherwise disposed of, in the order they are placed on the docket,’ etc. Id. c. 110, § 17. If this was conceded to its fullest extent, the result would be that the latter act, if otherwise valid, would repeal by implication so much of the practice act as was necessarily inconsistent with its provisions, and nothing more. But it seems clear that no repeal was intended of the provisions of the practice act, nor does any arise by necessary implication. The clerk must, as heretofore, make and keep the docket as required by section 14 of the practice act; and causes thereon are to be tried or otherwise disposed of in the order they occur on the docket, ‘unless the court, for good and sufficient cause, shall otherwise direct,’ as provided in the sixteenth section. Rev. St. 1889, c. 110, § 17. It has been the uniform practice for courts to pass cases out of their regular order, and to try them in other order than that in which they were placed upon the docket, for good and sufficient cause appearing; and this court has uniformly refused to interfere with the exercise of the discretion vested in the trial court in that regard, unless there has been an abuse of such discretion. Clark v. Marfield, 77 Ill. 258; Smith v. Bank, 79 Ill. 118. So, rules of court intended to facilitate and advance the business of the courts, when they did not conflict with the rules of practice established by the legislature, have been sustained by this court, although they had the effect to reach and dispose of causes out of the order in which they had been placed upon the docket. Hinckley v. Dean, 104 Ill. 630.

The act under consideration creates a rule of practice merely, and provides a more expeditious mode of disposing of causes to which it applies. For reasons satisfactory to the legislature,the cases falling within the act are to be placed upon a calendar or day's call, and are to be tried on the day required to be fixed by the court trying common-law causes. It cannot be doubted that in mere collections and like cases, where but little time need be consumed, the public interest will be promoted, and the dockets of the courts be relieved, thereby. Within the limitation that the right of the litigant shall not be impaired, and a remedy shall be preserved, the rules of practice and remedies to be pursued are within the legislative discretion and control; the only other limitation being that imposed by section 29 of article 6 of the constitution, that ‘all laws...