Stenzel v. Sims

Moran, P. J. Appellee recovered a judgment against appellant before a Justice of the Peace, and appellant took the case to the Circuit Court, where it was regularly placed upon the calendar, and reached in its order for trial. When the case was called for trial, neither the appellant nor his counsel was in attendance, and on motion of appellee the appeal was dismissed with a procedendo, and statutory damages were allowed against appellant. A motion was made at the same term to set aside the judgment of dismissal, and an affidavit filed which probably sufficiently disclosed merits as against the claim of appellee, but which also disclosed that appellant employed a lawyer (not the counsel who has argued the case in this court) to look after said appeal, and that said lawyer wholly neglected to do so, and that appellant did not know said case had been 'liable to call, or had been called and the appeal dismissed, until the Constable called upon him with an execution for the payment of the judgment. The neglect of his attorney is on this motion to be imputed to appellant himself, and his affidavit shows, therefore, an absolute lack of diligence. We can not regard his merits, no matter how complete his defense; his right to interpose it was forfeited by the negligence of his attorney and himself. It is not the practice for courts of review to interfere with the ruling of the trial Judge in such a matter where there is an absolute want of diligence shown. An appellate court has no authority to reverse in such cases, unless it appears from all the circumstances that there has been an abuse of the discretion of the trial court, and it can not be held an abuse of such discretion to refuse to set aside . a judgment when the moving party himself shows an entire lack of diligence. Though, on such motions, merits may be regarded as the more important of the two requirements, so as that, if diligence is shown, the highest degree thereof may not be essential where the merits are clear, yet diligence and merits must both appear, and absolute lack of the one is as fatal to the motion as the want of the other. Where the party employs a lawyer and the lawyer wholly neglects his duty, and because of such negligence the client is cast in his case or his defense, his remedy is complete against the delinquent attorney for all the damages which he has sustained through the neglect. Counsel for appellant has contended with earnestness and ingenuity, that the Circuit Court had no authority to dismiss the appeal with procedendo, but should have proceeded with the trial and compelled appellee to make out his case by evidence. The contention is based upon the fact that the trial of a ease coming to the court on appeal from a Justice of the Peace is' to be de novo, and upon the provision of the statute, that on the trial of the appeal “the rights of the parties shall be the same as in original actions.” However willing we might be to adopt the practice contended for if the question was a new one in this State, we are compelled to regard the course adopted by the trial court as so fully authorized by repeated adjudications in this State as to be not open to question. The point has been repeatedly made in the Appellate and in the Supreme Courts, and has. always been decided the same way. Boyd v. Kocher, 31 Ill. 295; Allen v. City of Monmouth, 37 Ill.372; Nispel v. Wolff, 74 Ill. 303; Lawler v. Gorden, 91 Ill. 602; Hickley v„ Dean, 104 Ill. 630; Bigelow v. Village of Kewanee, 17 Ill. App„ 631; De Luew v. Carrigan, 19 Ill. App. 193. There is nothing in the point that the record does not show that appellant was called, as is done where a default is entered in the original case. By filing his appeal bond appellant appeared and gave the court jurisdiction of the subject-matter by filing of the Justice’s transcript. It was appellant’s duty to be in court when his case was reached for trial. There is no error in this record which authorizes a reversal of the judgment of the court below, and the same must, there- . fore, be affirmed. Judgment affirmed.