Titley v. Kaehler

• Decision Date: 31 October 1881
• Citation: 9 Bradw. 537,9 Ill.App. 537
• Parties: JOHN TITLEYv.FRED KAEHLER ET AL.
• Court: United States Appellate Court of Illinois

9 Ill.App. 537

9 Bradw. 537

JOHN TITLEY

v.FRED KAEHLER ET AL.

Appellate Court of Illinois, First District.

October Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ELLIOTT ANTHONY, of the Superior Court, sitting as Circuit Judge, presiding. Opinion filed January 4, 1882.

This was a suit brought by Fred Kaehler and others, against John Titley and Ira H. Wilson, before a justice of the peace of Cook county. On the trial before the justice, the suit was dismissed as to Wilson, and judgment was rendered against Titley for $133.88 and costs, from which judgment Titley appealed to the circuit court. The appeal was perfected February 10, 1880, by filing an appeal bond with the clerk of the circuit court. On the 23rd day of the same month, the plaintiffs entered their appearance in writing, and the transcript and papers from the justice were filed in the circuit court on the 4th day of the following March. On the 23rd day of March, 1881, the appeal was dismissed for want of prosecution, the order of dismissal appearing in the record being as follows:

“And now at this day, said cause being reached on the call of the calendar, and the defendant not being present nor any one for him, thereupon, on motion of said plaintiffs, by their attorney, it is ordered by the court that said appeal be, and it is dismissed out of this court for want of prosecution, at said defendant's costs, and that said plaintiff have procedendo to the court below. And now here, on motion, the court assesses plaintiffs' damages against defendant for delay to the sum of $13.38. Wherefore, it is considered that said plaintiff recover of said defendant $13.38, their statutory damages, so as aforesaid by the court assessed, together with their costs in this court in this behalf expended, to be taxed, and have execution therefor.”

Three days afterwards, and at the same term of court, the defendant entered his motion to vacate the foregoing order, and in support of such motion read various affidavits, showing that said appeal was dismissed on a preliminary call of the docket; that the trial calendar of the judge before whom the case was pending for the day on which the order of dismissal was entered, commenced at number 207, and ended at number 399, this cause being number 496, so that it could not have been reached for trial in regular order for several days thereafter. The affidavits further show that on the morning of the day on which the appeal was dismissed, the defendant's attorneys learned the fact that there was to be a preliminary call of the docket before said judge, and having a case of an earlier number, which they understood would be within such preliminary call, one of them attended until the last mentioned case was passed on such call, and that before the call was concluded, he was summoned into another court-room to attend to matters relating to another case, which stood for trial there on the same day, and which demanded his immediate attention; that defendant's attorneys supposed that the preliminary call would only embrace fifty cases, which would not include the present case, and that they had no suspicion that this case was within the call until the next morning, when they ascertained that the appeal had been dismissed. The affidavits also tend to show that the defendant had a good defense to the action on the merits.

On the hearing of the motion, the court refused to vacate the order of dismissal, to which decision the defendant duly excepted, and now brings the record to this court by appeal.

Messrs. ELLIS & MEEK, for appellant; arguing against the authority of the court to establish a special rule as to the call of cases, cited Constitution, Art. VI, § 29; The People v. Rumsey, 64 Ill. 44; Mitchell v. The People, 70 Ill. 138: Rev. Stat. Chap. 110, § 15; Griswold v. Shaw, 79 Ill. 449; Fisher v. Nat. Bank, 73 Ill. 34.

The trial of appealed cases is de novo:Tindall v. Meeker, 1 Scam. 137; Frye v. Tucker, 24 Ill. 180.

Mr. H. W. WOLSELEY, for appellees; that setting aside a default is discretionary with the court, cited Constantine v. Wells, 83 Ill. 192; P. &. R. I. R'y Co. v. Mitchell, 74 Ill. 394; Mendell v. Kimball, 85 Ill. 582; Smith v. Davis, 89 Ill. 203.

The affidavits in support of the motion fail to show diligence on the part of the appellant or his attorneys: Linington v. Strong, 8 Bradwell, 388; Mendell v. Kimball, 85, Ill. 582; Kern v. Strasberger, 71 Ill. 415; Panton v. Manley, 89 Ill. 458.

BAILEY, J.

The judgment of the court below dismissing the appeal in this case, recites that, “said cause being reached on the call of the calendar,” etc., the appeal was dismissed for want of prosecution. The point is made that by this recital, the order of dismissal appears to have been entered when the cause was reached for trial in its order on the docket, and that this fact thus established, cannot be controverted by the affidavits filed in support of the motion to vacate the order. We agree with counsel that facts properly appearing by the record are conclusively proven, and that their truth cannot be impeached by affidavits. We are of the opinion, however, that the record in this case, when properly interpreted, fails to show that the cause was reached for trial in its order on the docket.

The record speaks only of a “call of the calendar.” The word “calendar” is not used in our statute, and it may or may not be synonymous with the statutory word “docket.” Its ordinary signification is, a list or enumeration of causes arranged for trial in court, but there is nothing in the word from which it can be determined how such list was made up, or upon what principle the various causes were arranged thereon The statute requires the clerks of courts to keep a docket which shall contain the names of the parties, etc., to all causes pending in their respective court...