Bigelow v. Village of Kewanee

17 Ill. App. 631, 1885 Ill. App. LEXIS 420

• Court: Appellate Court of Illinois
• Decided: December 4, 1885
• Status: Published

Opinion

Baker, J.

Appellant was prosecuted before a justice of the peace for a violation of an ordinance of the village of Kewanee, and a fine of §25 was assessed against him. He appealed to the Circuit Court of Henry county, where the case was pending for trial at the special March term, 1885. When the case was called for trial, on the 2d day of April, neither he nor his attorney appeared, and thereupon, on motion of the Village of Kewanee, plaintiff below and appellee here, the appeal was dismissed for want of prosecution, at the cost of appellant, and procedendo awarded.

On a subsequent day of the term, a motion was entered to set aside the order of dismissal and re-instate the cause, said motion being based upon affidavits which are preserved in the record.

This motion was overruled and an exception taken ; and the case is now here by appeal. •

We have carefully examined the affidavits, and are unable to say there was anything improper in the action of the court, either in dismissing the appeal, or in refusing to set aside the order of dismissal. Such matters are largely addressed to the sound judicial discretion of the trial judge; and the established doctrine is that an appellate court will not interfere uffiess there has been a palpable abuse of discretion, resulting in a substantial injury.

We think the affidavits presented are insufficient, and ihow negligence on the part of appellant; they are also defective in that they do not show by facts stated, that there is a meritorious defense to the suit; the statement there is a full and complete defense, is the expression of a mere opinion or conclusion. Greenleaf v. Roe, 17 Ill. 474; Union H. & L. Co. v. Woodley, 75 Id. 436; Constantine v. Wells, 83 Id. 192; Hitchcock v. Herzer, 90 Id. 543.

We find no error in the record. The judgment is affirmed.

Affirmed.