Wallbaum v. Haskin

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Wallbaum v. Haskin, 49 Ill. 313, 1868 WL 5234 (Ill. 1868)
• Decision Date: 30 September 1868
• Parties: AUGUST WALLBAUMv.EDWIN HASKIN et al.

49 Ill. 313

1868 WL 5234 (Ill.)

AUGUST WALLBAUM

v.EDWIN HASKIN et al.

Supreme Court of Illinois.

September Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action of assumpsit, brought in the court below, by Haskin and others against Wallbaum. The defendant pleaded the general issue, and filed his affidavit of merits. The cause was placed upon the trial calendar, and set down for trial on Friday, the 27th day of December, 1867.

On the 9th day of December, preceding the day for which the cause was set for trial on the regular calendar, one of the plaintiffs filed his affidavit that he believed the defense therein was made only for delay, and on the same day the plaintiffs gave the defendant notice that they would bring the cause on for trial at the opening of the court on the 16th day of that month, or as soon thereafter as the court would try the same.

This action of the plaintiffs was had under the following rule of the court below:

“ Ordered, That in any case ex contractu, pending on an issue, or issues of fact only, or only requiring the similiter to be added, which is noticed for trial at any term, if the plaintiff, or an attorney or agent of the plaintiff, shall make an affidavit that he or she believes that the defense is made only for delay, the plaintiff, by giving the defendant's attorney, or the defendant, if he or she do not appear by attorney, five days' previous notice, with a copy of such affidavit, that the plaintiff will bring on said case for trial at the opening of court, on a day of such term to be specified in such notice, or as soon thereafter as the court will try the same, may proceed to a trial at the time specified in said notice, unless it should be made to appear to the court, by affidavit of facts in detail, that the defense is made in good faith, when the case will remain, to be tried in its regular order on the trial calendar.”

On the 16th day of December, the same was called for trial, on the motion of the plaintiffs, and thereupon the defendant objected to having the cause tried out of its proper order as originally set for trial on the regular calendar, insisting the rule of the court under which it was sought to bring on the trial of the cause at an earlier day, was contrary to law. The court overruled the defendant's objection, and proceeded with the trial on the 16th of December, which resulted adversely to the defendant, and he...