Slade v. McClure

76 Ill. 319

• Court: Illinois Supreme Court
• Decided: January 15, 1875
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This is an appeal from the Mason circuit court, to reverse a judgment rendered on a promissory note signed by appellant.

The points made here are: 1. The court refused to grant a continuance on defendant’s motion and affidavit. 2. Refusing a new trial.

It appears from the record that a continuance had been applied for by defendant at a previous term, and allowed! by the court, on account of the absence of certain named witnesses, by whom he expected to prove certain facts adjudged material.

. At the subsequent term, the same affidavit, substantially, Was made the basis of another application for a continuance, on account of the absence of the same witnesses. This motion the court denied, and, we think, properly, in the exercise of. a legal discretion, for the affidavit presented such a state of circumstances as to reasonably shut out all hope of procuring the testimony of these witnesses. They were the absconding partners of appellant, who, in their flight, had taken with them the books and papers of the concern.

The ground for a new trial is alleged to be surprise, occasioned by the testimony of one McClure. The purport of the •testimony of'Gordon, if had, would only tend to discredit the testimony of McClure. This has never been held sufficient ground for a new trial. .

We perceive no error in the judgment, and must affirm the same.

Judgment affirmed.