Miller v. McGraw

Bailey, J. There was no error in refusing the defendant a new trial. The grounds urged in support of the motion were, 1, that the defendant ivas taken by surprise; 2, that the judgment is unjust and oppressive, and 3, that the defendant has a. meritorious defense. As no portion of the evidence adduced at the trial is preserved in the record, none of the foregoing grounds appear except so far as they are shown by the affidavits filed in support of the motion. A new trial will not be granted, because the trial was had in the absence of the defendant or his counsel, when such absence is attributable to his own negligence. Koon v. Nicliols, 85 Ill. 155; Edwards v. McKay, 73 Ill. 570. The affidavits in this case, fail to show such diligence as the law requires. All the defendant claims to have done was to examine the court proceedings as published in one of the daily newspapers, and to procure and examine the new calendars prepared for the use of two other judges of the superior court. He made no inquiries whatever as to whether a similar calendar had not been prepared for Judge Williamson before whom this suit was pending, nor does he seem to have paid the slightest attention to the call of the calendar in Judge Williamson’s branch of the superior court, beyond reading the court proceedings in a newspaper, which, so far as this record shows, may not have been or purported to be an accurate or complete statement of the proceedings of the superior court. In any view we can take of the case his absence from the trial was attributable to his own negligence, and he must, therefore, suffer the consequences. In addition to this the affidavits fail to show a meritorious defense. We are unable to say from anything appearing in the record, what the cause of action may have been for which the judgment was recovered. There is no attempt in the affidavits to enlighten us on that subject, and as the evidence heard at the trial is not preserved, our only information as to the ground of the recovery must be derived from the pleadings. But the declaration consists not only of a special count on the defendant’s contract to satisfy the deed of trust and discharge the plaintiffs’ lots therefrom, but also the common counts; and so far as we can judicially know, the recovery may have been had under the latter counts for some cause of action not specifically stated. It can not be seen then that the defense attempted to be stated in the affidavits has any application to the cause of action for which the judgment was rendered. But we are inclined to the opinion that the affidavits fail to show any defense to the cause of action stated in the special count. It is not claimed that the plaintiffs are not entitled to recover the value of the lots of land which they have lost by the defendant’s default in the performance of his contract to xrelease them from the deed of trust. The only contest is as to their value. The affidavits show that at the date of the contract they were worth much less than the damages recovered, but there is no attempt to show their value at the time the plaintiffs lost then- title by the foreclosure of the deed of trust. It was their value at the latter date, rather than the former, which would constitute the plaintiffs’ measure of damages, and so far as appears, the lots may have been worth the amount of the judgment at the date of the foreclosure. There being no error in the record the judgment will be affirmed. Judgment affirmed.