Chicago, P. & M. R. R. v. Kane

Mr. Justice Scofield delivered the opinion of the Court. At the August term of the court below, plaintiff in error made a motion for a continuance, on the ground that defendant in error had not filed a copy of the account sued on with her declaration. It is strenuously insisted that the court erred in overruling this motion. But the error, if it was such, was harmless, for the reason that after a mistrial the case was continued, and the trial, which resulted in the judgment now complained of, took place at the next term of the court. It is also contended that the court erred in not continuing the case at the term last above referred to, on the ground of the absence of the president and general manager of the company, who is alleged to be a material witness on bebalf of the plaintiff in error. The affidavit is clearly insufficient. The affiant, who was one of the attorneys for plaintiff in error, states, on information and belief, that the witness, if present, would deny certain facts, and that he believes it to be impossible for the witness to be present at the term of court then being held, basing such belief on a letter from the witness to the effect that he was going to Hew York on very important business, and could not postpone the trip. The faith of the attorney in his client’s truthfulness adds but little strength to the letter itself; and a continuance based on a letter not verified by affidavit would be too cheap for the proper administration of justice. The affidavit also fails to show that the witness is not absent for the very purpose of procuring a continuance. There was no error in holding the affidavit insufficient. Plaintiff in error offered no evidence, and the evidence on behalf of defendant in error is sufficient to sustain the verdict, regardless of slight errors in admitting evidence and in passing upon the instructions. Austin Kane was hurt while working for the railroad company, and was nursed by defendant in error, whose services were well worth the amount recovered on the trial. The trainmaster authorized the employment, and was apparently clothed with sufficient authority to do so, and his act is binding upon plaintiff in error. L. S. & M. S. R. R. Co. v. Brown, 123 Ill. 162; Phœnix Ins. Co. v. Stocks, 149 Id. 319; C. & A. R. R. Co. v. Rayburn, 52 Ill. App. 277; Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358. The judgment is affirmed.