Bailey v. Kerr

Mr. Justice Craig delivered the opinion of the court: It is first claimed in the argument that the court erred in overruling the motion of plaintiffs in error for a continuance. In order to procure a continuance it devolved on plaintiffs in error to show by their affidavit that they had used due diligence to procure the attendance of the witnesses mentioned in their affidavit, but upon an examination of the affidavit it will be found that no diligence whatever was used to procure the attendance of the witnesses, and upon this ground, if for no other, the ruling of the court was proper. On the 9th day of January, 1899, plaintiffs in error were notified that there would be a hearing of the cause on the 16th of January. On January 16 the parties appeared, and an order was entered setting" the cause for a hearing on January 20, but no subpoenas were issued for the witnesses desired and no effort whatever was made to bring them into court. Moreover, the proposed evidence related mainly to the value of the land proposed to be sold to Wunder, and that evidence was not material to the issue involved in the case. It appears from the record that on December 22, 1898, the application to approve the sale of the land to Wunder was heard and determined and an order approving the sale was then entered. On that hearing plaintiffs in error appeared and offered such evidence as they desired in regard to the value of the land and the necessity of the sale. From that order no appeal was taken or writ of error prosecuted. The order, to reverse which this writ of error was sued out, merely provided for the enforcement of the order entered December 22. Whether the land had been sold for its full value and whether the sale was for the best interest of the creditors had been settled by the judgment of the court entered on December 22, and when the affidavit for a continuance was filed nothing remained to be done but to carry out and enforce the former judgment of the court. We are therefore satisfied that the court properly overruled the motion for a continuance. It is also claimed that the court erred in refusing to allow plaintiffs in error to prove, on cross-examination of the witness Butzow, that the land would sell for more in small tracts than in a body. That was not a material question then pending before the court, as it had been settled on December 22, when the sale of the entire tract of land to Wunder had been approved. It is also claimed that no evidence was offered which supports the decree. It is true that the judgment of December 22 approving the sale and the proceedings under which it was entered was not formally offered in evidence. But that was not required, as the rule is well settled that a court will take judicial notice of the state of the pleadings and the various steps which have been taken in a particular cause pending" before it. (Secrist v. Petty, 109 Ill. 188.) Here the petition referred to the former order, recited the steps taken to carry it into effect and prayed for a further order for its enforcement. .In the consideration of the petition it will be presumed that the court took notice of its own records in regard to what had previously been done, and it will also be presumed.that such records were before the court on the hearing. It is said in the argument that the land would sell for more if sold in parcels and at public sale. The land was offered at public sale after being thoroughly advertised, but the best offer made was seven dollars per acre less than Wunder agreed to pay. As to a sale in parcels, it will be remembered that the land was encumbered by mortgages for §18,000, in addition to interest. These mortgages covered the whole tract, and unless each tract could be cleared of the entire mortgage indebtedness it would be difficult to find a purchaser for some particular part of the land. Moreover, the record fails to show that the land would sell for more in parcels than in one tract. After a careful examination of the record we find no substantial error, and the judgment of the county court will be affirmed. Judgment affirmed.