{ "id": 2593637, "name": "W. J. Winterburn v. Frank W. Parlow", "name_abbreviation": "Winterburn v. Parlow", "decision_date": "1902-06-05", "docket_number": "", "first_page": "368", "last_page": "372", "citations": [ { "type": "official", "cite": "102 Ill. App. 368" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "186 Ill. 253", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3227581 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/186/0253-01" ] }, { "cite": "51 Ill. App. 549", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5112030 ], "opinion_index": 0, "case_paths": [ "/ill-app/51/0549-01" ] }, { "cite": "71 Ill. 488", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311344 ], "opinion_index": 0, "case_paths": [ "/ill/71/0488-01" ] }, { "cite": "1 Gilm. 654", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2466347 ], "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/ill/6/0654-01" ] }, { "cite": "2 Scam. 567", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2474994 ], "opinion_index": 0, "case_paths": [ "/ill/3/0567-01" ] } ], "analysis": { "cardinality": 380, "char_count": 7813, "ocr_confidence": 0.552, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08248589010401765 }, "sha256": "4b53900fd6ff7132c59d0a9633faeb7c203dfc3e1d807fb85a4bc58c7e3f6dc8", "simhash": "1:ba05d791f22e877e", "word_count": 1411 }, "last_updated": "2023-07-14T14:51:35.524386+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. J. Winterburn v. Frank W. Parlow." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThis is an appeal from a judgment rendered in favor of appellee and against appellant for the sum of \u00a7760.80, in an action of assumpsit on promissory notes. The cause was on the short calendar of the court, and when it was called for trial appellant\u2019s attorney moved the court to strike the cause from the short calendar, on the ground that no affidavit was filed with the clerk of the court, as provided by the statute. The court overruled the motion, and the cause proceeded with the result stated. Appellant made no defense on the merits, but relied, and now relies, on his motion and the overruling thereof.\nAppellant, in support of his motion, introduced the following :\nss. \u201cState of Illinois, Cook County.\nIn the Circuit Court of Cook County.\nFrank W. Parlow ) AsgT_ 215)494. W. J. Winterburn. ) 15,144.\nCharles Lane, being first duly sworn, deposes and says that he is the attorney for the plaintiff in the above entitled suit at law now pending in said court, and that this affiant verily believes the trial of said suit will not occupy more than one hour\u2019s time.\nCharles Lane.\nSubscribed and sworn to before me this 25th dav of March, A. D. 1901.\nMabel K. Backensto,\n[Seal.] Hotary Public.\u201d\n\u201c State of Illinois, ) Cook County. j '\nIn the Circuit Court of Cook County.\nFrank W. Parlow)^ 21B>494_ W. J. Winterburn. \u00cd 15,144.\nTo Adolph Marks, Attorney for Said Defendant ;\nTake notice, that on the 25th day of March, A. D. 1901, an affidavit, of which the foregoing is a copy, was duly filed in said suit, and that the clerk of said court will place said suit on the short cause calendar for trial, as by statute provided.\nDated Chicago, March 25, 1901.\nCharles Lane,\nAttorney for Plaintiff.\u201d\nThe following indorsement is on the back of said notice and affidavit for short cause calendar:\n\u201c Service of a copy of the within notice is received this 25th day of March, A. D. 1901.\nAdolph Marks,\nAttorney for Deft.\nFiled March 25. 1901.\nJohn A. Cooke, Clerk.\u201d\nIt will be observed that the date of the document, and also the date of filing the same, is March 25, 1901. The case was called for trial and the motion to strike the cause from the short cause calendar made May 27,1901.\nThe appellant\u2019s counsel, in his argument, assumes that the foregoing document was only a copy, and that it, the copy of affidavit and the notice, was all that was filed with the clerk of the court. Counsel is warranted in assuming that the part of the document which precedes the notice is a copy of an affidavit, because the notice so states; but we do not think him warranted in assuming that the document, including the copy of affidavit and the notice, was the only document filed with the clerk. It is recited in the bill of exceptions that the motion is made \u00a3\u00a3 for the reason that there has no affidavit been filed with the clerk of the court, authorizing said clerk to place said cause on the short cause calendar, as the statute provides.\u201d. It was clearly incumbent on appellant to prove, in support of his motion, that an original affidavit, such as the statute provides, was not filed with the clerk, and proof that the document above quoted was filed with the clerk is not such proof. Proof that a certain document was filed falls far short of proving that it was the only document filed. Section 1 of the short cause calendar act, omitting the enacting words, is as follows:\n\u00a3f That it shall be the duty of the clerk of each court of record in this State to prepare a trial calendar, in addition to the regular trial calendar of each court, to be known as the 1 short cause calendar.\u2019 Upon the plaintiff, his agent or attorney, in any suit at law pending in any court of record, filing an affidavit that he verily believes the trial of said suit will not occupy more than one hour\u2019s time, and upon ten days\u2019 previous notice to the defendant, his agent or attorney, said suit shall be placed by the clerk upon said short cause calendar.\u201d\nBy this section two things are made conditions precedent to placing a cause on the short cause calendar, viz., the filing with the clerk of an affidavit such as is prescribed by the statute, and the giving ten days\u2019 notice to the defendant or his agent or attorney. Manifestly, in order to warrant the clerk in placing a cause on the short cause calendar, evidence, at least prima facie, must be furnished to him that the notice required by the statute has been given, and such evidence may consist of the notice and the acknowledgment of service thereof by the defendant, or his agent or attorney, or proof by affidavit of service thereof. Proof that the copy of the affidavit preceding the notice and made a part thereof was filed with the clerk, is not proof that the original affidavit was not filed with the clerk. It is entirely proper for the clerk to file both the original affidavit and the notice. The appellant did not, in support of his motion, introduce any evidence that the notice, including the copy of affidavit, was the only document filed with the clerk.\nThe presumption, in the absence of evidence to the contrary, is that the clerk did his duty. 1 Jones on Ev., Sec. 38; People v. Auditor, 2 Scam. 567; Evans v. School Commissioners, 1 Gilm. 654, 658; Connell v. Watkins, 71 Ill. 488.\nIt was the duty of the clerk, before placing the cause on the short cause calendar, to see that an original affidavit was made and filed,and also to require evidence that proper notice had been served on the opposite party, his agent or attorney, and these conditions precedent having been complied with, it was his duty, on the tenth day from the service of the notice, to place the cause on the short cause calendar, and it must be presumed that he performed these duties, in the absence of evidence to the contrary. The tenth day after service of the notice was April 4, 1901; the case was called for trial, and appellant\u2019s motion made May 27,1901, seven and one-half weeks after the cause was on the short cause calendar. In that interval the whole of the April term, 1901, elapsed. The motion, even though \u25a0the cause was irregularly on the short cause calendar, was too late. Johnston v. Brown, 51 Ill. App. 549; Stewart v. Carbray, 59 Ib. 397; Wheatley et al. v. Chicago T. & S. Bank, 64 Ib. 612; Belinsi v. Brand, 76 Ib. 404; Highley v. Metzger, 86 Ib. 573, and 186 Ill. 253.\nThe general issue was filed by appellant, but no similiter was added by plaintiff, and appellant\u2019s counsel urge that, therefore the cause was not at issue. This objection was not made in the trial court in support of appellant\u2019s motion, and therefore can not be availed of here. The adding a similiter is a matter of course, and merely formal. Highley v. Metzger, 186 Ill. 253.\nAppellant\u2019s plea of the general issue concludes with \u201c &c.,\u201d and in such case a similiter may be added even after verdict. 1 Chitty on Pl., 5th Am. Ed. 564.\nThe judgment will be affirmed.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "Adolph Marks, attorney for appellant.", "Charles Lane, attorney for appellee." ], "corrections": "", "head_matter": "W. J. Winterburn v. Frank W. Parlow.\n1. Practice\u2014A Similiter May Be Added After Verdict.\u2014The filing of a similiter is a matter of course and merely formal. It may be added even after verdict.\n2. Evidence\u2014Proof that a Copy of an Instrument Only Is on File, No Evidence that the Original Is Not.\u2014Proof that it is a copy only, of an instrument which is on file, is not competent proof that the original is not on file.\n3. Short Cause Calendar\u2014Motions to Strike Causes from, to he Made in Apt Time.\u2014A motion to strike a cause from the short cause calendar must be made in apt time, or the right to the motion will be lost.\nAppeal from the Circuit Court of Cook County; the Hon. Alonzo K. Vickers, Judge presiding.\nHeard in this court at the October term, 1901.\nAffirmed.\nOpinion filed June 5, 1902.\nAdolph Marks, attorney for appellant.\nCharles Lane, attorney for appellee." }, "file_name": "0368-02", "first_page_order": 384, "last_page_order": 388 }