61 Ill. App. 282 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
It is first urged that the court below erred in advancing the trial of the attachment issue.
The statute, Sec. 18 of Chap. 110, R. S., provides that “ in all suits by capias where the defendant shall have been arrested, and in replevin and attachment, the plaintiff may be required to file his declaration at the first term, and the defendant may have a trial at such term, unless sufficient cause for a continuance is shown.”
The statute does not make it compulsory upon the defendant in such cases to have a trial at the first term, unless sufficient cause for a continuance is shown, but it does give him the right to such trial, if he demand it.
In addition to this, the statute, Sec. 17 of Chap. 110, R. S., gives the court the right for good and sufficient cause to direct that a case be tried out of its order.
The affidavit of the defendant was sufficient to justify the court in acting as it did upon the discretion confided to it by the statute.
Sec. 27 of Chap. 11. R. S., distinctly warrants the trial of the attachment issue before the hearing upon the case to which it is an adjunct.
It may be the case that, ordinarily, it is better that each issue be submitted at the same time to one jury. Hawkins v. Albright, 70 Ill. 87 (90); Moeller v. Quarrier, 14 Id. 280; Boggs v. Bindskoff, 23 Id. 65. But such course is not compulsory.
The parties may consent to separate trials of the variant issues, or the court may, in its discretion, so order.
We do not think that there was, in the action of the Superior Court, in this regard, an abuse of discretion, such as would justify us in setting aside the judgment rendered.
Appellant insists that she should have been permitted to amend the affidavit for the attachment. What appellant really asked was that she be permitted to file an additional affidavit, assigning grounds not contained in the original. £To objection had been or could well be made to the sufficiency of the affidavit she filed at the beginning of her action; it was in nowise insufficient, had it been, her right to file a sufficient one would have been clear. Sec. 28 of Chap. 11, R. S.
We think that if plaintiff desired to file an additional affidavit setting forth additional grounds for an attachment, she should have offered to file therewith a new bond, conditioned for the prosecuting with effect, etc., the additional cause set forth. It is manifest that the bond she had given, months before, would not cover the new reasons assigned for, and the new issue in attachment tendered by the new affidavit. Baldwin v. Ferguson, 35 Ill. App. 393; Dennison v. Blumenthal, 37 Ill. App. 385.
We find no error in this- record -warranting a reversal of the judgment rendered upon the attachment issue, and it is affirmed.