Mills v. Executors of Elizabeth Bland.
| Decision Date | 31 January 1875 |
| Citation | 1875 WL 8216,76 Ill. 381 |
| Parties | E. W. MILLS et al.v.EXECUTORS OF ELIZABETH BLAND. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Moultrie county; the Hon. C. B. SMITH, Judge, presiding.
Mr. A. B. LEE, and Mr. J. MEEKER, for the appellants.
Mr. A. C. MOUSER, for the appellees.
This was an action commenced in the circuit court of Moultrie county, in the name of Elizabeth Bland, for the use of Eugene Bland, against appellants, upon a promissory note. Upon the first day of the term of court to which the summons was returnable, the attorney for the plaintiff suggested the death of Elizabeth Bland, and the executors of her estate were substituted as parties plaintiff, and an amended declaration was filed, to which the defendants interposed a plea of the general issue.
The defendants then entered a motion for a continuance of the cause, based upon an affidavit as follows: “Erastus W. Mills, being duly sworn, upon his oath says he is one of the defendants in the above entitled cause, and that he is not prepared to proceed to trial, on account of the amendments, at this term, and believes he will be ready at the next term.”
The court overruled the motion for a continuance, and this decision is assigned for error. The 26th section of the Practice Act, Rev. Stat. 1874, p. 778, declares: “No amendment shall be cause for a continuance unless the party affected thereby, or his agent or attorney, shall make affidavit, that in consequence thereof, he is unprepared to proceed to or with the trial of the cause at that term, and that he verily believes that if the cause is continued he will be able to make such preparation.”
Upon a fair and reasonable construction of the statute we do not regard the affidavit sufficient.
The object of the statute allowing amendments was to enable the parties to obtain a speedy trial upon the merits, untrammeled by technical questions arising upon the pleadings.
The affidavit fails to show that the defendants had any defense whatever, upon the merits, to the action, or that they were taken by surprise by the amendment made to the declaration.
The affidavit, in order to authorize a continuance of the cause, should have contained facts from which the court could have seen that, by reason of the amendment made, the defendants were not then ready for trial, and that at another term of court a meritorious defense could have been...
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