105 Ill. App. 236 | Ill. App. Ct. | 1902
delivered the opinion of the court.
This is a suit originally brought before a justice of the peace, from whose judgment an appeal was taken by appellant to the Circuit Court. Shortly thereafter, upon a preliminary call in said court of 100 cases, made to ascertain which of that number were ready for trial, no one appearing when this case was called, the court ordered it stricken from the docket.
It is first urged that the subsequent proceedings were erroneous for want of a formal order of re-instatement on the docket. It does not appear that any formal motion to re-instate was made; but seven days after the cause had been stricken off, appellee’s attorney served notice on appellant that he would ask leave of court to file in the cause the transcript of the judgment of the justice of the peace. When this application was made, the court stated that leave was not necessary and the transcript could be filed as a matter of course. This was done accordingly. W e regard these proceedings as re-instating the cause. It is probable that on the said preliminary trial call the intention of the court was not to strike the cause from the docket but from the trial calendar. However that may be it is too late now to raise in this court an objection to an informality which, had attention been called to it at the time, would doubtless have been at once remedied. The objection must be deemed to have been waived.
It is urged that the court erred in placing the cause on the short .cause calendar. If this objection were well taken, which the abstract fails to show, it has been waived. No application to strike the cause off appears ever to have been made. See Treftz v. Stahl, 46 Ill. App. 462; Johnston v. Brown, 51 Ill. App. 549; Jones v. King, 86 Ill. 226-227; Oliver v. Gerstle, 58 Ill. App. 615-616.
It is objected that the cause was called for trial on Thursday instead of Monday, which by rule 18 of the Circuit Court “ is set apart and assigned as the day for the trial of suits upon the short cause calendar, but any judge mav postpone the call of the short cause calendar.” As stated by appellant’s attorney the record is silent whether the call of Thursday, May 2, 1901, when this case was tried, was pursuant to any postponement to that date. In the absence of any showing to the contrary the “ presumption is that the court, at the time of the trial, complied with its rules in respect to calling the short cause calendar.” Dickinson v. Bull, 72 Ill. App. 75-77. As is said in Armstrong v. Crilly, 152 Ill. 646-648, there is nothing in the statute or the rule referred to which prohibits the judge from continuing the call of that short cause calendar from day to day, if necessary to dispose of the cases on it for trial.
There is in the record an affidavit of appellee’s attorney that on the day of the trial he searched for the files in the cause without finding them, or anything to show who the attorneys for appellant were. It is urged that it was error to proceed with the trial without the files. The presumption is that the court proceeded regularly, in this respect also, and for aught that appears the files were on hand when the case was called for trial. ,
It may be that appellant has a good defense. But, if so, it had every opportunity to present it, by the use of ordinary diligence. , We find no sufficient excuse for the failure to present its defense at the proper time, and no abuse of judicial discretion in the action of the Circuit Court overruling the motion to set aside the judgment and grant a new trial. The judgment must be affirmed.
