| Ill. | Jun 13, 1896
delivered the opinion of the court:
It is claimed that the court erred in refusing to continue the cause on March 25, on application of the attorney of the defendant. The affidavit for a continuance was fatally defective in failing to state any facts which the affiant expected to prove by the defendant or any other absent witness. Nor did it show any diligence in preparing for trial, and the court could not do otherwise, under the law, than overrule the application.
It is next complained that the court erred in refusing to strike the cause from the short cause calendar, for the alleged reason the cause was not at issue when placed on that docket. This objection is predicated on the fact that the similiter was not added to the general issue. That was a matter more of form than substance, and when a trial proceeds, where there is a plea of the general issue, without the similiter, no advantage can be taken. (Hazen v. Pierson, 83 Ill. 241" date_filed="1876-09-15" court="Ill." case_name="Hazen & Lundy v. Pierson & Co.">83 Ill. 241.) Where a cause has been tried in the absence of a similiter to a plea of the general issue, the cause will be treated in the same way as if a similiter had been added. So, also, here, when the causé was placed on the trial calendar, it will be treated as if the similiter had been added and the issue formally made.
It is next claimed that the court erred in orally directing the jury to find the issues for the plaintiff, and to assess plaintiff’s damages at a certain amount. Under our statute the circuit court has no authority to instruct the jury orally on any material issue in the case. Here no defense was made before the jury, and there was no question in regard to the amount the plaintiff was entitled to recover under the evidence, and the instruction to the jury was harmless; but at the same time it was erroneous, and had an exception been preserved to the decision of the court in instructing the jury, we would be inclined to hold that the judgment should be reversed. Essick, one of the attorneys who appeared for the defendant, was present in court at the time the instruction was given and made no objection to it, nor did he except to the ruling of the court in giving the instruction. It is true, he stated to the court when the application for a continuance was denied, “I want it understood that the defendant is not represented here,—I take no part in this trial.” But he remained in court, and never, at any time, withdrew his name as an attorney for the defendant. Under such circumstances, if counsel for the defendant desired to call in question the ruling of the court, it was the duty of counsel who was present to except to the ruling, and a failure to do so was a waiver of the error now relied upon.
It is also said the lease upon which the action was brought was not read to the jury. The lease was offered in evidence and it was before the court, and, whether it was formally read or not, it will be treated as having been read to the jury.
It is also claimed that the court erred in hearing counter affidavits on the motion of defendant for a new trial. On a motion for a new trial it has never been the practice to allow counter affidavits to be read. But this was more than a mere motion for a new trial. . It was a motion to va.cate the judgment and set aside a default, and on a motion of that character the right to file counter affidavits was recognized in Palmer v. Harris, 98 Ill. 507" date_filed="1881-03-21" court="Ill." case_name="Palmer v. Harris">98 Ill. 507, and in other cases.
In the Appellate Court the appellee remitted from the judgment §50, but the Appellate Court, notwithstanding the remittitur, required appellant to pay the costs in that court. We do not think that was correct. Upon a confession of appellee that the judgment was too large the court should have required appellee to pay the costs.
The judgment of the Appellate Court will be affirmed except as to costs, and the costs of the Appellate Court will be taxed to appellee.
Judgment affirmed in part and reversed in part.