Peoria v. Mitchell
| Decision Date | 30 September 1874 |
| Citation | 1874 WL 9148,74 Ill. 394 |
| Parties | PEORIA AND ROCK ISLAND RAILWAY COMPANYv.ROBERT MITCHELL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Stark county; the Hon. J. W. COCHRAN, Judge, presiding.
Messrs. INGERSOLL & PUTERBAUGH, for the appellant.
Messrs. MCCULLOCH, STEVENS & WILSON, for the appellee.
An application was made by appellant to the county court of Stark county for the assessment of damages by reason of the appropriation of a portion of appellee's lands for railroad purposes. They were appointed, acted, and made their report to the circuit court, as required under the provisions of their charter. From the finding of the commissioners, so returned, appellee appealed, and, on the case being called for trial, no one appeared on behalf of appellant, and a default entered and the damages were assessed; a motion to set aside the default was entered, but overruled by the court. The record is brought to this court on appeal, and a reversal is asked.
It is first insisted the court below erred in refusing to grant a change of venue of the case. Even if it were conceded that the affidavit contained sufficient grounds, the application was not made in proper time. The affidavit states that the information of the grounds alleged came to the knowledge of affiant at the time the judge was appointed to his office, and the delay in making the application was because negotiations for a compromise were pending. The record shows that the court convened on the 7th day of April, 1873, and the motion for the change of venue was not made until the 17th of that month.
The sixth section of the venue law provides that a change shall not be allowed after the first term of the court at which the party applying could be heard, unless he shall show the causes have arisen, or come to his knowledge after such term, and shall also give ten days' notice of his intention to apply, except where the causes have arisen or come to his knowledge within less than ten days of making the same. Regular practice required that the application should have been made at the earliest opportunity, for a change of venue. The party had no right to keep parties and witnesses in attendance till toward the latter end of the term, knowing all the time of the grounds relied on, and then make his motion. The statute contemplates no such practice. No reason is shown why the motion was not made on the first day of the term, without delaying ten days. The fact that propositions were pending for a compromise of the case in nowise prevented appellant from filing his petition and entering his motion. Nor was the notice of the intended application given, although the record shows that affiant knew of the grounds certainly ten days before the motion was entered, and we presume for a much longer period. This is a requirement of the statute, positive in its character, and which cannot be disregarded. There was no error in refusing to change the venue.
It is next urged that the court below should have set aside the default. That is a matter of discretion, that this court will not control, except in extreme cases, and when it is manifest that the discretion is abused, to the great wrong and injury of the defendant. In this case we can see no such abuse. The affidavit states that counsel had set the cause for hearing on Thursday of the first week, and on finding the day before that he could not be present at the trial, he telegraphed to opposing counsel to know if he would set the case for some day the next week, when he replied he was willing to fix it for any day of the next week, and appellant's counsel suggested no day, nor did he even reply. This certainly fixed no day, and it was left to the option of counsel to fix the day, which he failed to do.
The opposing counsel had a right to know what day the case would stand for trial, that he might have his witnesses ready, and not be required...
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