106 Ill. 558 | Ill. | 1883
delivered the opinion of the Court:
The several rulings of the Superior Court are assigned for error.
The court did not err in refusing a continuance. The affidavit for a continuance was insufficient, in not showing the use of due diligence to obtain the testimony of the witness. The ease had been pending since July 19, 1881, there had been one trial on February 6, 1882, and the cause had been on the-trial calendar since April 3, 1882. Had a subpoena been served in time, the witness, perhaps, would not have absented himself, or his deposition might have been taken. See Eames v. Hennessy, 22 Ill. 629.
There was no error in striking from the files defendant’s demurrer to plaintiff’s replication to the special pleas. It appeared that at a former term of the pourt there had been a trial of the cause before a jury, and that the demurrer had been filed without leave of court, since, on the 26th day of June, 1882, the cause having been on the trial calendar since April 3, 1882, and having been on the call for trial June 23, and by agreement of parties continued to the 26th. In such a posture of the cause defendant had no right to file the demurrer without leave of the court, and it was properly stricken from the files.
There were various rulings of the court, to which exception was taken, excluding offers of evidence in proof of several of the averments of the special pleas, and the court finally instructed the jury to find and render a verdict for $2645, the amount appearing to be due on the note. We perceive no error in all this. The execution of the note, or the assignment of it to the plaintiff, was not denied under oath, and so stood admitted. The note was submitted to the jury. The presumption would be that the note was assigned before maturity, and in addition to such presumption there was proof positive of the purchase by the plaintiff of the note from the distilling company, more than a month before its maturity, for full value paid. There was nothing in contradiction of this evidence, and we find no evidence in the record to affect the plaintiff with notice of any defence of defendant to the note. The defence set up, if valid, as against Lawrence & Martin, or the distilling company, was not admissible as against the plaintiff, from the lack of evidence of her purchase of the note after maturity, or with notice of such matter of defence, and we perceive no error, therefore, in the exclusion of evidence of transactions and matters between defendant and Lawrence & Martin and the United States Distilling Company exclusively, or in instructing to find for plaintiff, and the judgment must be affirmed.
Judgment affirmed.
