Opperman v. Conway

Appellate Court of Illinois

Opperman v. Conway

117 Ill. App. 524, 1905 Ill. App. LEXIS 9

CourtAppellate Court of Illinois

DecidedJanuary 5, 1905

DocketGen. No. 11,678

StatusPublished

This text of 117 Ill. App. 524 (Opperman v. Conway) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Opperman v. Conway, 117 Ill. App. 524, 1905 Ill. App. LEXIS 9 (Ill. Ct. App. 1905).

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Opinion

Mr. Justice Brown

delivered the opinion of the court.

Although the appeal bond in this case recites the appeal to be from a judgment in favor of appellee against appellant in the County Court for $287, and is conditioned to pay the judgment if it is affirmed, the rest of the record would seem to show the cause in this court to be an appeal, not from such judgment, but from an order of the County Court after the said judgment, refusing to vacate it and reinstate the cause. The bill of exceptions relates to that motion entirely, the ground of which was that the appellant had a good defense to the suit, that he had retained a lawyer to defend it, that the lawyer had pleaded for him the general issue, but by an oversight failed to appear when the case was duly called for trial in its order on the calendar of the County Court. The cause was therefore submitted to the jury and tried ex parte, without the presence of appellant or his counsel.

The application to set aside the judgment under the circumstances disclosed was addressed to the sound discretion of the court below, and that discretion will not be interfered with here, except in case of clear abuse of it. Treutler v. Halligan, 86 Ill. 39. To hold that in this case such discretion was abused" would be absurd. If the Appellate Courts should assert that it was an abuse of discretion to refuse any litigant another chance whose lawyer had been through “ oversight” neglectful, the trial courts we fear would be more overwhelmed with business than at present even. ' • The cases cited by appellant’s counsel from 6 Ill. App. and 22 Ill. App., were not like the case at bar, and each depended on peculiar circumstances appearing in the record.

The judgment appealed from will be affirmed. It is not, in our opinion, either under the statute or the facts a case for giving damages, as suggested by appellee’s counsel.

Affirmed.

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Mr. Justice Brown

delivered the opinion of the court.

Although the appeal bond in this case recites the appeal to be from a judgment in favor of appellee against appellant in the County Court for $287, and is conditioned to pay the judgment if it is affirmed, the rest of the record would seem to show the cause in this court to be an appeal, not from such judgment, but from an order of the County Court after the said judgment, refusing to vacate it and reinstate the cause. The bill of exceptions relates to that motion entirely, the ground of which was that the appellant had a good defense to the suit, that he had retained a lawyer to defend it, that the lawyer had pleaded for him the general issue, but by an oversight failed to appear when the case was duly called for trial in its order on the calendar of the County Court. The cause was therefore submitted to the jury and tried ex parte, without the presence of appellant or his counsel.

The application to set aside the judgment under the circumstances disclosed was addressed to the sound discretion of the court below, and that discretion will not be interfered with here, except in case of clear abuse of it. Treutler v. Halligan, 86 Ill. 39. To hold that in this case such discretion was abused" would be absurd. If the Appellate Courts should assert that it was an abuse of discretion to refuse any litigant another chance whose lawyer had been through “ oversight” neglectful, the trial courts we fear would be more overwhelmed with business than at present even. ' • The cases cited by appellant’s counsel from 6 Ill. App. and 22 Ill. App., were not like the case at bar, and each depended on peculiar circumstances appearing in the record.

The judgment appealed from will be affirmed. It is not, in our opinion, either under the statute or the facts a case for giving damages, as suggested by appellee’s counsel.

Affirmed.

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117 Ill. App. 524, 1905 Ill. App. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/opperman-v-conway-illappct-1905.

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