Black v. Exley

Mr. Justice Freeman delivered the opinion of the court. When a cause has once been placed upon the “short cause calendar’’ in the manner provided in the statute (R. S. chap. 110, sec. 95-99)., it becomes the duty of the clerk to strike-it off the “regular trial calendar.” Brady v. Washington Ins. Co., 82 Ill. App. 380-382. In contemplation of law the case is no longer on the regular trial calendar, and must be treated accordingly. There is thereafter no way to get it back upon that calendar if it be not passed or continued, “except upon notice to the defendant, his agent or attorney.” The case at bar was improperly stricken off the short cause calendar without such notice and in violation of the statute. In contemplation of law it still remained on said short cause calendar notwithstanding the order striking it off. The attorney for the plaintiff in the trial court suggests that the record does not show the case ever to have been upon the short cause calendar. It does, however, show a notice to place it on that calendar and an order striking it off. When, therefore, the cause appeared on the trial call of the regular trial calendar it was improperly there. The defendant’s attorney appeared and moved to strike it off. Both parties were then present in court, with full notice, and upon hearing and consideration, the court refused to strike the cause off the regular trial calendar. This was equivalent to restoring it to that calendar with notice to the defendant. Before that time the cause had been on that calendar by default of the clerk. Brady v. Washington Ins. Co., supra, p. 383. Thereafter it was there by act of the court. The statute does not provide for any special method of giving notice, nor does it fix any time. The court had power to place the cause again on the regular trial calendar or docket, both parties having notice and being present. Section 16 of the Practice Act provides that all causes shall be tried or otherwise disposed of in the order they are placed upon the docket. Having been replaced on the regular trial calendar or docket, the cause was subject to trial when reached in its order, and it was so tried over the objection of the defendant. The objection, however, was that the case was still on the short cause calendar. In this defendant’s attorney was mistaken. It had been restored to the regular calendar- by the court’s previous action. Doubtless had there been a motion for continuance based'on proper affidavits in compliance with the requirements of the Practice Act in that respect, the court would have granted the application. It appears that the defendant and his attorney were present during the trial, and refused to participate therein. This was the defendant’s right, but in the absence of any showing or application for a continuance, no reason appears why the trial should not have proceeded as it did. Binding no material error, therefore, the judgment of the County Court must be affirmed. Affirmed. Mr. Presiding Justice Baker, dissenting.