McKee v. Ludwig, 30 Ill. 28 (1862)

Jan. 1862 · Illinois Supreme Court

30 Ill. 28

George W. McKee, Plaintiff in Error, v. William C. Ludwig, Jesse S. Kneedler, and William R. Hamlin, Defendants in Error.

ERROR to coles.

Where a party has applied for and obtained a continuance, it is error for the court to set aside the order granting the continuance, and dismiss the suit for want of prosecution, without first giving a reasonable notice to the party at whose instance the continuance was granted.

This cause originated before M. Jones, sheriff of the county of Coles, and was a • trial of the right of property, in which the said George W. McKee was claimant, and William C. Ludwig, Jesse S. Kneedler, and William R. Hamlin, were plaintiffs in execution, when a trial was had and a verdict rendered against the said claimant, and in favor of the said defendants ; from this judgment appeal was taken, and bond filed on the 15th of September, 1860, by which the cause was removed by the said plaintiff or claimant, into the Coles Circuit Court for trial. Summons issued to appellants, hut not being served in time for the October term, 1860, of the Coles Circuit Court, at that term, the appearance of defendants or appellees was entered and cause continued.

At the May term, 1861, of the said court, and on the seventh day of said term, the said George W. McKee, claimant, appeared and filed an affidavit, and prayed a continuance of the said cause, which being examined, etc., the cause was ordered by the court, on the twelfth day of the term, to be continued until the next term of the said court.

Afterwards, on the sixteenth day of the term, the defendants again appeared, by Craddock, their attorney, and moved the court to set aside the said continuance, which motion was sustained, and the order of continuance set aside.

On the seventeenth day of the term, the court proceeded to have the claimant called, and, upon his default in appearing, dismissed the said suit for want of prosecution, at plaintiff’s or claimant’s costs, which were adjudged against him, with order for execution, etc.

Constable & Allison, for Plaintiff in Error.

The plaintiff in error, in this cause, urges that the continuance granted upon the application of claimant, was warranted and required by the act of the special session, 1861, of the General Assembly of the State of Illinois, entitled “ An act for the relief of volunteer soldiers of this State,” in force May 3, 1861; and even were it not so, it is insisted, that after the continuance of the cause the case passed from before the court, to all intents and purposes, without further notice to claimant of intention of defendants to move further in the case, etc.

For these reasons defendants were not entitled to a judgment of dismissal, or for costs, as shown by the records to have been subsequently, at their instance, rendered by the court, etc.

Caton, C. J.

It is unnecessary for us to determine whether the affidavit for a continuance was sufficient under the statute or not. After the order for the continuance had once been granted, and the claimant allowed to depart, supposing that the cause was disposed of for the term, he was entitled to reasonable notice before setting aside that order, and proceeding to take a default for his non-appearance. The court therefore erred in setting aside the continuance, and allowing the claimant to be called without such notice.

The judgment is reversed, and the cause remanded.

Judgment reversed.