Schnell v. Rothbath, 71 Ill. 83 (1873)

Sept. 1873 · Illinois Supreme Court

71 Ill. 83

Conrad Schnell et ux v. Paul Rothbath.

Continuance—stateness of party. If a continuance is asked on the ground of the sickness of a party, that fact must be shown by affidavit, and not by the mere certificate of his physician; and it must also be shown that his presence at the trial was necessary, to give testimony or otherwise.

Appeal from the Superior Court of Cook county; the Hon. William A. Portee, Judge, presiding.

Mr. Joseph Schlernitzauee, for the appellants.

Per Curiam :

The only question here presented, is upon the overruling of a motion for a continuance.

The suit was against Conrad Schnell and Caroline Schnell, his wife, to enforce a mechanic’s lien upon premises owned by the latter.

Upon the cause being called for trial, on the 28th day of April, 1873, a motion for a continuance was made on behalf of the defendants, and overruled by the court. The motion was based upon the affidavit of one Walter, a clerk for the solicitor of the defendants, stating, merely, that on the 25th of April, 1873, he went to the house of the said Conrad Schnell, and found him sick in bed, and unable to attend court, and obtained from his attending physician a certificate of that fact; and that the affiant again went to see whether the said Conrad would be able to come into court the 28th of April, 1873, and that the physician made another like certificate. The certificates were attached to the affidavit.

The court was not required to act upon the mere certificate of a physician, but should have had evidence, under oath, of the sickness of Conrad Schnell. There was no such evidence of his sickness on the 28th of April. The affidavit showed no necessity whatever for his presence at the trial, either to give testimony or for any other purpose. The affidavit was manifestly wholly insufficient for the purpose of procuring a continuance.

The judgment is affirmed.

Judgment affirmed.