Hazen & Lundy v. Pierson & Co.

Mr. Justice Scholeield delivered the opinion of the Court: This was assumpsit, by appellees against appellants, for goods, wares and merchandize sold and delivered. Appellants pleaded non assumpsit, to which no similiter was added, and it is argued that the court erred in compelling appellants to proceed to trial without the similiter being added. This, although apparently seriously urged, is frivolous, for, as was said in Gillespie v. Smith et al. 29 Ill. 476, “ The similiter to a plea of not guilty, or to any negative plea, can be added by the defendant if he chooses to add it, and it is not error to proceed to trial without it. Waters v. Simpson, 2 Gilm. 577; Williams v. Brunton, 3 Gilm. 625; Stumps v. Kelley, 22 Ill. 140; Walker v. Armour, 22 Ill. 659.” Besides, when the case was called for trial, the defendants interposed no objection because of the omission to add the similiter, and proceeded to trial upon the merits. This was a waiver of the right to object that there was no issue joined, McCully v. Silverburgh, 18 Ill. 306. When the case was called for trial, the attorney for the appellants filed his affidavit, asking for a postponement of the trial until three o’clock in the afternoon of that day, or until the following morning, on account of the absence of appellants. In this affidavit it is alleged, appellants have a meritorious defense, which is stated, to one-half of the demand of appellees; that appellants’ attorney had promised to notify appellants in time to be present at the trial; and that he had given them no notice to be then present, because there were other cases having precedence on the docket, which, he supposed, would prevent its being reached. The court overruled the motion, and ordered the trial to proceed. There are at least two good reasons why there is no error in this ruling of the court. In the first place, the affidavit is insufficient. It is not shown that any facts can be proved by appellants, if present, which might not be sufficiently proved by other witnesses. Ho reason is shown why appellants were not present at the time the case was called. They had been properly summoned. The case was not called out of its order on the docket, nor had it been set for trial, by the court, on any other day. If they had a defense, it was their business to be present to make it when the case was called for trial. They were entitled to no further notice after the service of summons, and it was their own folly that they were not present when the case was called for trial. In the second place, it appears from the record that one of appellants, Hazen, was present, and testified as a witness on their behalf; that he arrived at the court after three o’clock in the afternoon of that day, and so all the time they desired, they, in fact, had, and there was then no reason why the trial should have been further postponed. On the point urged that the court erred in refusing to allow parol evidence to be given of the contents of a letter alleged to have been written by appellees to appellants, we think it clear the preliminary proof of the loss of the letter was insufficient. Hazen admits that his examination was hasty, and, from the facts he testifies to, it was evidently unsatisfactory to himself. It is not clearly shown that the letter is either lost or destroyed, nor that it was beyond appellants’ power to produce it. We have carefully examined the evidence, and think it clearly sustains the verdict. We are not inclined to think the objections taken to the instructions tenable; but, even if they were, since the verdict is authorized by the evidence, and any other verdict would have been unwarranted, the error could not be allowed to avail to the disturbance of the judgment. The judgment is affirmed. Judgment affirmed.