Hittle v. Zeimer

Mr. Justice Carter delivered the opinion of the court: We are of the opinion that the trial court did not abuse its discretion in refusing to vacate and set aside the decree in this case on the showing contained in the record before us. Appellant was charged with knowledge of the terms and conditions upon which the trial of the cause was postponed from May 8 to May 16, and it was his duty to have prepared for the hearing set for the latter date by securing other solicitors if the illness of those already employed continued, or at least to have been ready, when the case was called for trial, to show to the court that he had been unable, for sufficient reasons, to make such preparation. Had the case not been previously postponed for the same cause and appellant given time in which to secure other counsel in case those then employed were unable to appear, the showing made would have presented a very different aspect. But there was a clear lack of diligence. It was not shown whether Crea, who for upwards of two years had been associated with Ammen as counsel for appellant, was informed before May 15 of the postponement from May 8 to May 16, or whether any steps whatever were taken by appellant, or by any of his counsel or those representing his counsel, in the eight days given for the purpose, to prepare ‘for trial. Nor were appellees or their counsel apprised that appellant would be unable to proceed with the trial, but they were allowed to put themselves in readiness for the hearing, by procuring the attendance of their witnesses and otherwise, in the expectation that the direction of the court would be complied with and the cause heard on the day fixed and agreed upon. . The question is not" presented whether it would not have been error for the court to overrule a motion for a continuance had such a motion been made and supported by affidavit showing the continued illness of Ammen, and that Crea had prepared to try the cause on the part of appellant, but had, because of illness occurring subsequently to May 8, become unexpectedly unable to proceed with the trial. It may also well be that the trial court was not satisfied, as we are not, that the complainant had a meritorious case. The principal question upon which he relied, as shown by the affidavit of Harding,—that is, that the sale of the property by the trustee, under the trust deed, was fraudulent, and that complainant had the right to redeem therefrom,—had been decided adversely to his contention by this court in the cases of Sawyer v. Campbell, 130 Ill. 186, and Harding v. Fuller, 141 id. 308, affecting the same title. The ruling of the trial court may be sustained on either or both of the grounds mentioned. No error was committed, and the judgment of the Appellate Court must be affirmed. , . „ , Judgment affirmed. Wilkin and Phillips, JJ., dissenting.