Hurd v. Lill, 26 Ill. 496 (1861)

April 1861 · Illinois Supreme Court

26 Ill. 496

Harvey B. Hurd, Appellant, v. Charles G. Lill et al., Appellees.

APPEAL PROM THE SUPERIOR COURT OP CHICAGO.

A judge who takes a case under advisement, cannot recall the witnesses before him and examine them in the absence of counsel. Notice of ah intention to recall the witnesses should be given, so that the party may be present and cross-examine if he chooses.

This was an action to recover from appellant a bill of goods, which it was claimed had been sold to his brother in pursuance of his authority. The general issue was pleaded. The court found against appellant, and gave judgment for $180.43. The judge to whom the case was submitted, the attorney for the plaintiff only being present, allowed the plaintiff, without notice to the defendant, to recall two witnesses who,had been examined some months prior, and re-examined them as to the fact of the authority given by plaintiff, to' make purchases in his name, and other facts.

H. B. Hurd, pro se.

Asay & Bracken, for Appellees.

Caton, C. J.

The cause was by the agreement of the parties submitted to the judge for trial, in place of a jury, and was accordingly tried and submitted to him, aud he took it under advisement. At a subsequent day, in the absence of and without notice to the defendant or his counsel, he recalled some of the witnesses before him, probably to refresh his memory as to what they had testified on the trial. This we think was error. If he deemed it necessary to enable him to decide the case satisfactorily, to call the former witnesses or others, he should have caused a reasonable notice to have been served on the party, that he might be present at the new hearing and cross-examine the witnesses.

The judgment is reversed, and the cause remanded.

Judgment reversed.