Williams v. Baker

67 Ill. 238

• Court: Illinois Supreme Court
• Decided: January 15, 1873
• Status: Published

Opinion

Mr. Justice Thornton

delivered the opinion of the Court:

The motion for a continuance was properly overruled. The affidavit was defective. It only stated that the presence of the absent attorney was “necessary to a trial of the cause.” The statute requires that it shall appear to the court, by affidavit, that the attendance of the attorney “is necessary to a fair and proper trial.”

The party had an attorney in court who seems to have made every available defense. The case was exceedingly simple, and could have been defended by any tvro in the profession. We must presume that the omission to state any facts as to the character of th~ suit, to enable the court to judge intelligently, or that the attendance of the attorney was necessary to a fair trial, was purposely made, and that the aflidavit was purely for delay.

The plain inference from the whole record is, that Williams only pleaded, and that the default of the other defendant was entered before judgment. When the defendant who had filed a demurrer to the special count, consented to a trial, he waived any benefit which he might otherwise have had from the demurrer.

A trial was then had, and the note was offered under thern common counts, after proof of the signatures.

The plaintiff's name was N. S. Baker, and the note offered was payable to "N. S. Bake." The plaintiff's possession of the note, and the proof that it was in fact executed and delivered to him, were sufficient to admit it as evidence under the common counts.

The note was for so much money, "with ten cent interest/rem date." These words can not be rejected as surplusage, and some effect must be given to them. The evident intention was, that the note should bear interest, and the words must mean ten per cent interest. Thompson v. Hoagland, 65 Ill. 310, and Gramer v. Joder, id. 314.

The judgment is affirmed.

Judgment Affirmed.