Hudson v. Hanson

75 Ill. 198

• Court: Illinois Supreme Court
• Decided: September 15, 1874
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

The promissory note which is the subject of this controversy, purported to have been executed by Henry Hudson to one I. H. Johnson, and by him indorsed to Joseph H. Hanson. It was dated December 13,1866, and payable six months .after date, for value received, and for the sum of seventy-five • dollars. It was endorsed by the payee, a few days after its date, and on its maturity, payment being refused, the endorsee, Hanson, commenced an action thereon before a justice of the peace, which resulted in a verdict and judgment for the defendant.

On appeal to the circuit court, at the January term, 1870, on a trial there before a jury, the verdict was “ no cause of action.” This verdict, on motion of plaintiff, for a new trial, was set aside, and at January term, 1872, the cause was again tried, and the same verdict, in terms, was rendered. A motion for a new trial was made, which, without any special order of continuance, went over to the next June term, at which term the motion was allowed.

At the June term, 1873, and on June 3, the defendant filed his petition for a change of venue, on account, as alleged, of the prejudice of the judge, and alleging that the knowledge thereof did not come to the petitioner until the day previous. The notice served was to the effect that the party would make his application on the ninth of that month.

Ho motion was in fact made at that term, but at the following October term, the defendant made an affidavit in support of a motion for a change of venue, in which is inserted the application and notice made at the June term, alleging as an excuse for failing to make the motion at that term, that the court had entered an order that all causes then on the common law docket should stand continued for all purposes, except defaults, assessment of damages, motions and settling of issues.

The court disallowed the motion, and directed the affidavit to be stricken from the files for impertinence.

It would appear from the record that no motion was in fact made for a change of venue until at the October term, at which term it was duly made and denied. We are inclined to think the motion came too late. It has been uniformly held by this court that a motion for a change of venue must be made at the earliest practicable moment, and not put off just before the cause is to be called for trial. Moss et al. v. Johnson, 22 Ill. 633; Kelly et al. v. Downs, 29 ib. 74. The order of the court continuing the causes on the common law docket expressly saved motions, and this motion should then have been made and pressed.

Upon the merits of the case we have found nothing, on a careful reading of the testimony, which would justify an interference with the finding of the jury. Appellant was his own principal witness, and the jury had the full benefit of his knowledge of the transaction. That he made different statements about this note is shown, and that he knew he was signing- a note in blank, there is a great preponderance of evidence. The jury were charged by the court as appellant requested, and no question was made on the evidence on the trial. All the facts were placed fully before the jury, and they properly instructed. The plaintiff appears to be an innocent purchaser of this note for value, without any notice of any infirmity attached to it, and the fact that it was obtained by fraud and circumvention is wholly ignored by the jury, and their verdict must stand. The other points are not sustained.

The judgment is affirmed.

Judgment affirmed.