The St. Louis v. Teters

• Decision Date: 30 June 1873
• Citation: The St. Louis v. Teters, 68 Ill. 144, 1873 WL 8297 (Ill. 1873)
• Parties: THE ST. LOUIS AND SOUTHEASTERN RAILWAY CO.v.JACOB TETERS.
• Court: Illinois Supreme Court

68 Ill. 144

1873 WL 8297 (Ill.)

THE ST. LOUIS AND SOUTHEASTERN RAILWAY CO.

v.JACOB TETERS.

Supreme Court of Illinois.

June Term, 1873.

APPEAL from the Circuit Court of Jefferson county; the Hon. JAMES M. POLLOCK, Judge, presiding.

This was a proceeding instituted by the appellant against the appellee, to condemn land for a right of way.

At the March term, 1873, the petitioner moved the court for a continuance, based upon the following affidavit:

“A. L. Gardiner, being first duly sworn, says that he is the agent of the plaintiff; that said plaintiff can not safely proceed to the trial of said cause at this term of court on account of the absence of Thomas S. Casey, who is the principal or senior counsel in said cause; that said Thomas S. Casey is a member of the Senate, one of the houses of the General Assembly of the State of Illinois, and now in actual attendance upon a session of the said General Assembly at the capital of said State; that said attorney was employed by plaintiff in said cause before the election of said attorney to the office aforesaid, and before the present session thereof was begun, and before the present term of this court began, and further saith not.

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                ¦(Signed)¦A. L. GARDINER, Agent.  ”¦
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The court overruled the motion, and the plaintiff excepted. The jury assessed the defendant's damages at $600, and the court rendered judgment thereon and awarded execution.

Mr. J. M. HAMILL, and Messrs. CASEY & WILSON, for the appellant.

Mr. T. B. TANNER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a proceeding under the statute, instituted by appellant in the circuit court of Jefferson county, against appellee, for the purpose of condemning the right of way for its railway over a forty-acre tract of land. The venue was changed to White county, and afterwards again changed back to Jefferson county.

At the March term, 1873, the cause was tried by the court and a jury. A verdict for $600 was rendered, and after overruling a motion for a new trial, the court rendered judgment for that sum and awarded execution.

It is insisted that the court below erred in overruling a motion for a continuance. The affidavit on which the motion was based, states that the principal attorney in the case was employed as such before he was elected to the Senate of the State, of which he was then a member, and was absent at Springfield in the discharge of his duty as such Senator; that the presence of such attorney was necessary to a full, fair and proper trial of the case.

The 46th section of the act of the 22d of February, 1872, (Sess. Laws, 345,) provides that it shall be sufficient cause for a continuance if it shall appear by affidavit that any party applying for a continuance, or any attorney or solicitor or counsel of such party is a member of either house of the General Assembly, and in actual attendance upon the sessions of the same, and that the presence of such attorney, solicitor or counsel in court, is necessary to a fair and proper trial of such suit; that, on filing such affidavit, the court may grant a continuance of such suit. This affidavit brings this case clearly within the statute.

The only question which can arise is, whether the granting of the continuance is not a matter of discretion with the court. This act does not profess to repeal any other law, thus leaving the practice act in force so far as the same does not conflict with this law.

The 23d section of the practice act (R. S. 416) allows exceptions to be taken to decisions of the court in overruling motions for continuance, and authorizes the assignment of error on such decision. Thus it will be seen that, as this section is not repealed, and is not in conflict with the law of 1872, it is in force, and must control. If so, it was error in the court below to overrule the motion.

Again, the first clause of the section declares that such an affidavit shall be sufficient cause for a continuance. Hence, the word “may,” in the latter clause, must be construed to mean “shall.” When all of the provisions on the subject are considered, we are clearly of opinion that it was not discretionary to grant or refuse the continuance.

But it is said that, when the venue was changed back to Jefferson county, it was agreed that the case should be tried at the next March term of that court, and that the party was thereby estopped to claim a continuance. We are not inclined to hold that the parties intended a trial should be had at all events at that time. A reasonable interpretation of the agreement would not prevent a continuance on account of the sickness of the parties or witnesses, or the absence of witnesses, where due diligence had been employed to procure their attendance at the trial. The agreement only contemplated a trial if it could be had without one party obtaining an undue advantage of the other.

We shall express no opinion as to the weight of evidence on the motion for a new trial, on the ground that the verdict is against the evidence. As the case must go before another jury, we will leave them free to pass upon the evidence and to determine its weight.

It is next urged, that the circuit court erred in receiving evidence as to the danger of killing stock and the danger of the escape of fire by reason of the...