39 Ill. 531 | Ill. | 1864
delivered the opinion of the Court:
' The appellee’s testator filed a bill in equity against the appellant and Edward Kelly to dissolve a copartnership between them, and wind up its affairs. A joint and several answer under oath was filed by the defendants, to which there was a replication. The defendants filed a cross-bill, alleging a viola-tion of the articles of copartnership by the complainant, from which they had sustained damages, and praying for their allowance. An answer was filed to the cross-bill, to which there was also a replication. Subsequently the appellant made-an application to file a further answer, which was granted, and, as the record states, subject to objection and to such disposition as the court might make of it at the final hearing. The final; decree directs the further answer of the appellant to be stricken from the files, and we presume that this was done for the reason that the court was of the opinion that he was not entitled to-relief from the admissions of his former answer. Where an answer is not under oath, and a further answer is necessary to; present a defendant’s case, it is always allowed upon application made in apt time, so that the complainant is not surprised or, delayed in the progress of the cause, nor injustice is done him thereby.
The original answer, until it is otherwise ordered, always remains a part of the record, and, while it so remains, the defendant is bound by its admissions, and a retraction of them in a supplemental answer is of no more use than so much waste paper. The court never allows its records to be incumbered with useless papers. If an admission has been made in an answer improvidently and by mistake, the court will relieve the party making it from its effect, by an order directing so much of the answer as contains the admission to be treated, as no part of the record, but, before such an order will be made, the court must be satisfied by affidavit that the admission was made under a misapprehension or by mistake. Courts exercise a liberal discretion in relieving from the effect of admissions in answers not under oath, which are mere pleadings and are frequently signed by counsel; but where an answer is under oath great caution is observed. If the relief sought is from an admission of law it may be sufficient to show that he was erroneously advised by his solicitor in that regard; but where the relief sought is from an admission of fact it should be shown that the answer was drawn with care and attention, stating upon information and belief such facts as were not within the defendant’s own knowledge. Ho court ought to relieve a party from the consequences of a reckless misstatement under oath. It should also be shown that the fact misstated was not one within the defendant’s own knowledge, and that he was erroneously informed in regard to it, and made oath to the answer, honestly believing such erroneous information. The affidavit of the appellant was entirely insufficient to relieve him from the effect of admissions in his original answer, and his application to file a supplemental answer for that purpose was properly denied.
An order was made, during the progress of the cause, requiring the defendants to close their proofs by a day named, which was afterward enlarged, upon their motion. At the hearing the appellant offered to sustain the allegations of his answer and cross-bill by the testimony of witnesses to be examined in open court; but he was not allowed to examine them, because the rule for closing proofs had expired. Under the act of February 12, 1849, parties have the right to sustain every material allegation of their pleadings by an examination of witnesses in open court, and no order can be made abridging the rights of parties under it, or requiring them to waive or forego the rights thus secured to them. The proper practice is to set the cause for a hearing, and if afterward justice or convenience require further delay the hearing may be postponed, from time to time, until the court, in its discretion, directs the parties to proceed therein. Every reasonable indulgence should be granted to parties to enable them to procure their testimony; and, after it has been done, if they are not prepared at the hearing, they should justly suffer the consequences of their own neglect. It was suggested, in argument, that the testimony offered by the appellant was only cumulative. If it so appeared by the record, and the testimony had been excluded for that reason, the case would merit a different consideration. According to the record, the parties were not heard, as they were entitled to be; and, without any examination of the merits of the case, the decree of the court below will be reversed, and the cause remanded for further proceedings.
Decree reversed.
