Staunton Coal Co. v. Menk

• Decision Date: 19 June 1902
• Citation: 64 N.E. 278,197 Ill. 369
• Parties: STAUNTON COAL CO. v. MENK.
• Court: Illinois Supreme Court

197 Ill. 369

64 N.E. 278

STAUNTON COAL CO.

v.MENK.

Supreme Court of Illinois.

June 19, 1902.

Appeal from appellate court, Third district.

Action by Clara Menk, administratrix, against the Staunton Coal Company. From a judgment of the appellate court (99 Ill. App. 254) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Thomas, for appellant.

Zink, Jett & Kinder, for appellee.

This is an action on the case, begun on September 7, 1900, by the appellee, as administratrix of the estate of Otto Menk, deceased, who was her husband, against the appellant, the Staunton Coal Company, to recover damages for the death of her husband while engaged as an employé of the appellant in a coal mine belonging to or operated by the appellant. A plea of not guilty was filed, upon which issue was joined. The case was tried at the September term of the circuit court of Macoupin county, which began on the 17th day of September, 1900, being the third Monday of September. The trial took place on October 10th, in the absence of appellant's counsel, and verdict was returned against appellant. Upon November 12, 1900, the defendant, by its attorney, moved the court to set aside the verdict and award a new trial. On November 22, 1900, the motion so made was heard, and in support of the same the appellant filed three affidavits,-one of William Struthers, the president of the appellant company; one of John Homer, clerk of the circuit court of Macoupin county; and one of appellant's attorney. The rules of said circuit court were also introduced in evidence. The court overruled the motion to set aside the verdict and grant a new trial, and entered judgment in favor of appellee upon the verdict. An appeal was taken from this judgment to the appellate court, and, it having been there affirmed, the present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, C. J. (after stating the facts.)

The alleged ground upon which it was sought by the appellant in the court below to set aside the verdict and grant a new trial was that the circuit court tried the case out of its order on the docket at the request of appellee's attorneys, and without notice to the appellant, and without any good cause for so trying the case out of its order.

1. If it be assumed that it was proper, upon this motion to set aside the verdict and for a new trial, to introduce affidavits for the purpose of showing a trial out of its order upon the docket, it must be said that here the affidavits filed do not show a trial of the cause out of its order upon the docket. Section 14 of the practice act provides that ‘the clerks of the courts shall keep a docket of all the causes, pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and the name of the plaintiff's attorney, and he shall furnish the judge and bar, at each term, with a copy of the same, in which all indictments and causes, to which the people may be a party, shall be first set down, after which shall be set down all cases in law, in order, according to the date of their commencement, and lastly, the suits in chancery.’ Section 15 of the same act provides that ‘the clerk shall set and apportion the causes for as many days of the term as he may think necessary, or be directed by the judge.’ Section 16 of the same act provides that ‘all causes shall be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court for good and sufficient cause shall otherwise direct.’ 3 Starr & C. Ann. St. (2d Ed.) pp. 2991, 2992. The only one of the three affidavits filed by appellant which bears directly upon this subject is the affidavit of Homer, the clerk of the circuit court. His affidavit shows that he had been clerk of the court for eight years, and that during that time it had been the custom of the court to call the docket every Monday or Tuesday, and set for trial for the coming week as many cases, irrespective of their kind or position on the docket, as would probably occupy the time of the court for that week, and that this was generally done by consent of counsel, and in such manner as to accommodate them as much as possible. He states that, in accordance with this custom, certain cases on the law docket of the court were set for trial on each day, except Saturday, of the first week of the term. It appears from his affidavit that at the September term, 1900, of the circuit court, there were on the docket 64 criminal cases, 100 law cases, and 115chancery cases, and that the number of the case at bar upon the law docket was 76. The clerk states in his affidavit that on Friday, September 28, 1900, another setting of cases was arranged for the week ending with Friday, October 12, 1900, and that on the former day the court announced that the case at bar would be set for trial for October 10, 1900. The clerk also states in his affidavit that he was requested by the attorneys for the appellee to have said cause set for trial, and that he asked the court to set it for trial; but the selection of the day for the trial was made by the court, and without suggestion by the clerk or the attorneys. It also appears from this affidavit that when the case was set for trial for October 10th none of the attorneys for either party were present. There is nothing in the affidavit of Homer, the clerk, and nothing in either of the other affidavits, to show that when this case, whose number was 76 on the law docket, was tried, all the other cases standing on the docket before it had not been disposed of for the term. If all the cases preceding it upon the docket had been tried or disposed of before it was reached, it cannot be said that it was tried out of its order. It does not appear that any case preceding it, and having a less number than 76, was set for trial after the day when No. 76 was set for trial. Of all the cases shown to have been set for trial before September 28, 1900, the numbers were less than 76, except two, to wit, 96 and 99. But there is nothing to show that Nos. 96 and 99 were actually tried, or that they were not passed, or continued, or dismissed, or otherwise disposed of by the court without a trial. Where it is not shown what disposition is made of cases set for trial out of their order on the docket, and where it does not appear that they may not have been passed without being finally disposed of for the term, it is to be presumed, in the absence of any statement of the cause in the record, that the court had good and sufficient cause for what was done. Smith v. Barlow, 67 Ill. 519;Anthony v. International Bank, 93 Ill. 225.

2. But, even if the case was set for trial out of its order upon the docket, section 16 gives the court the right to take such action for good and sufficient cause. That section only provides that causes shall be tried in the order they are placed on the docket, ‘unless the court for good and sufficient cause shall otherwise direct.’ It nowhere appears in the affidavits that the court did not have good and sufficient cause for setting the case for trial on Wednesday, October 10, 1900. A statute which directs that a court may do a thing on good cause shown vests a discretion in the court. 8 Am. & Eng. Enc. Law, p. 1357; Kerchner v. Singletary, 15 S. C. 535;Kendall v. Briley, 86 N. C. 54;People v. Sessions, 62 How. Prac. 415. The statute does not determine what shall constitute sufficient cause for trying a case out of its order on the docket; but that is a...