#### Henry H. Hall v. David O’Brien et al.

Appeal from Cass.

1. Practice — re-instating cause for review. It will be a rule of practice hereafter, whenever a party desires .to move to re-instate a cause on the docket, or to set aside a default, and predicates his motion on an affidavit, to require him not only to give the adverse party notice of his intended motion, but also a copy of the affidavit on which he will found it.

2. SAME — same. The supreme court will not re-instate a cause upon the docket, which has been dismissed during the absence of counsel, where neither the record nor the affidavit in support of a motion for that purpose shows any ground of error.

3. Same — absence of trial judge. Semble, That a party cannot assign for error that the judge was absent from the court house for a short time, during the trial of a cause, and placed another person “on the bench to preside, with the consent of both parties,” who decided upon the questions as they were presented, in the progress of the cause.

This cause was heard in the court below, at the October term, 1843, before the Hon. Samuel D. Lockwood. Judgment was rendered for the appellees for $350 and costs, and the appellant brought the cause to this court. The appeal was dismissed, at an early day in the term, for want of prosecution.

The only error which was alleged to exist in the record is found in the following bill of exceptions: “ Be it remembered, that on the trial of the above entitled cause, and while the trial was going on, and the witnesses being heard, his honor, the presiding judge in said cause, left the bench and the court house, and out of the hearing of the witnesses, for nearly one half of an hour, and while so absent, and during the progress of the cause, his honor, the judge, placed one Henry E. Dummer, Esq., on the bench to preside, but with the consent of the counsel for both parties; and while the said Dummer was so presiding, the said Dummer did decide the questions as they were presented in the progress of the cause; to which the said defendant excepts, and prays that this bill of exceptions may be signed and sealed by the court, which is done,.and made a matter of record in said cause, in open court, this 6th day of October, 1848. The [* 406] above exception was not taken till after the verdict of the jury was rendered, and the jury discharged.

“Saml. D. Lockwood, [seal].”

John Pearson, for the appellant,

presented in court the fol*421lowing motion and affidavit, and moved to set aside the order made at a previous day of this term, dismissing the appeal herein, and to reinstate the cause on the docket:

“ Henry H. Hall ads.

David O’Brien and Michael O’Brien.

I In the supreme court, [December term, 1843.

“ And now comes the said defendant and appellant, H. H. Hall, by J. Pearson, his attorney, and moves this honorable court that the above cause, heretofore on the docket of this court, and dismissed at this term for want of appellant complying with a rule of appellees, be reinstated on the docket for the following reasons, to wit:

“ 1. That in consequence of indisposition of the attorney employed by appellant, to bring the case to the supreme court, he could not attend in time to comply with the rule.”

“ 2. That it was through mistake and misunderstanding of the attorney general, to whom the attorney employed wrote, because of his absence, that the rule was not complied with.

“ 3. That appellant has prosecuted said appeal in good faith, and relied on the engagement he had made with his attorney. J. Pearson, or he would have employed other counsel.

“ J. Pearson, att’y for appellant.”

“Henry H. Hall ^

ads. l^ln the supreme court,

David O’Brien and f December term, 1843.

Michael O’Brien. J

“ John Pearson, employed as counsel for the said Henry H. Hall, appellant, some time in October, 1843, to prosecute this appeal from the circuit court of Oass county to this court, deposes and says, that he, as such counsel, advised the prosecution of tha said suit to this court, in good faith, believing that the court below had committed an error in its proceedings in the trial of said case, which, in the opinion of this deponent, was good cause for reversing the judgment of the said circuit court. This deponent, impressed with this view of the merits of the said case, so appealed to thin court by the said Ha.ll, agreed to be employed, and was then and there employed by the said Hall, to attend to and argue the assignment of errors in this court, whenever the cause should be heard. Some time in November last this deponent, having business which demanded his attention in the northern and eastern parts of this state, left this section of the state, expecting, however, to finish his business and [* 407] reach Springfield in time to perform his engagement of arguing the above case whenever it should be reached on the docket. But circumstances were such, on arriving at the points where his affiant’s business was to be transacted, that he found it *422would be impossible to finish or transact the business, for which the journey was undertaken, in time to reach the supreme court in the early part of its session, or intime to attend to the case aforesaid ; whereupon this affiant wrote a letter to the attorney general, Mr. McDougall, and Mr McConnel,.asking either of those gentlemen to attend to said suit, and to do all that would be necpssary to the hearing of the same, in case it should be called on for hearing before this affiant could reach Springfield. This affiant would further state that his subsequent detention beyond the time stated in the letter to the attorneys aforesaid, was caused by the inclement weather, the bad state of the roads and streams, and a very severe soreness of the eyes. And when this affiant arrived at Springfield, on the 18th instant, he learned with surprise that no appearance had been had in said, cause; that the cause had been dismissed for want of prosecution, with five per cent, damages. This affiant learned from the attorney general, Mr. McDougall, that he had received the letter of this affiant in due time to attend to the said suit, and would have attended to the same for this affiant, and taken the necessary steps to the prosecution of the said appeal, had he not got the impression that the appellant had subsequently employed.,- as counsel in said case, Messrs. Logan & Lincoln. This affiant would further state and depose, that in the absence of his client, who lives some thirty miles from Springfield, he called on Mr. Lincoln to know if he and partner had, in the absence of this affiant, been employed in the above cause; and this affiant understood, from a conversation had with Mr. Lincoln, that neither himself nor Judge Logan, as he thought, had been employed in this case ; that he knew of no one attending to the case on the part of the appellant in the supreme court, or words to that effect. This affiant would further state that he knew this cause would be late on the docket, and towards the last of the causes to be heard in their order, and hence he was the more confident that it would not be reached until late in the session of the supreme court, and consequently he did not write to his client on the subject, to employ other counsel, and believing, as this affiant has before said, that the attorney general, Mr. McDougall, would take the preparatory steps in the case until his arrival. This affiant, as soon as he could, after learning the disposition of the cause by this honorable court, had an interview with the appellant, who was unadvised as to the order of the supreme court until he had, then, a few days previous, seen a notice in some newspaper, as this affiant was in- [* 408] formed by him, and was much surprised at the order aforesaid ; and has instructed and engaged this affiant to present a motion to this honorable court for reinstating said cause on its docket. This affiant would further state that he gave D. Smith, Esq., counsel for appellees, some five or six days ago notice that

*423a, motion to tins effect would be made in this honorable court, which notice is in substance as follows; ’

“ John Pearson.”

“ Sworn to, and subscribed, before me, this 31st day of January, 1844.

“ E. Peck, C. S. 0.”

“I-Ienrv II. Hall h

ads. I In the supreme court,

Michael O’Brien and ( December term, 1843.

David O’Brien. J

“ D. Smith, Esq., Sir: You, as one of the counsel employed by the defendants in the above ease in the supreme court, and where the above suit was dismissed for not assigning errors agreeably to the rule taken by defendants, will take notice that a motion will be made in said court, and will be argued for plaintiff, that said suit may be reinstated on the docket. Said motion will be accompanied by affidavits which you can, if you wish, at Springfield, examine" before said motion is brought to the consideration of the court aforesaid.

“ J. Pearson, for plaintiff.”

“ Jacksonville, January 25th, 1844.

“ Copy delivered on the 25th instant to D. Smith.

“ J. Pearson.”

J. Young Scammon, for the appellees, resisted the motion and filed the following affidavits:

“ Supreme court of the State of Illinois, December term, 1843.

“ David O’ Brien and Michael O’Brien ads.

Henry H. Hall.

“ J. Young Scammon doth solemnly, sincerely, and truly declare and affirm, that he has received from David A. Smith, the attorney for David O’Brien and Michael O’Brien, in the above entitled suit, a letter dated Jacksonville, January 25th, 1844, in which he informed this affiant that he had received the annexed notice (1) of a motion in this court, in the above entitled suit, and he, said .Smith, requested this affiant to resist the motion, if it should be made.

“ This affiant further saith, that he has been informed [* 409] by Stephen T. Logan, Esq., that he, said Logan, was spoken to by said Hall, to attend to this suit for him in this court; and that said Logan told said Hall, that he would look into the record in the cause, and if he should find any error there he would assign it;

“ This affiant further saith that he was informed by said Logan, *424that he looked into the record, and seeing no error, declined making an assignment, or appearing in the cause.

“ This affiant further saith, that he has been informed by said Smith; that said Logan was present in court when the cause was dismissed for want of assignment of errors, and made no objection to its dismissal.

“ J. Young Sgammon.

“ Duly affirmed to, according to law, before me, this 31st day of January, 1844.

“E. Peck, C. S. C.”

(1)

This notice is a copy of that appended to the foregoing affidavit.

Per Curiam, Thomas, Justice:

The affidavit of the appellant’s attorney would have shown sufficient grounds for reinstating the cause on the docket, if it .had shown probable grounds of error, or the court, on inspection of the record, had perceived grounds of error, as the affidavit does show that the appellant had employed counsel, and that that counsel was prevented, by circumstances beyond his control, from attending to the cause. But no ground of error is pointed out, and none is apparent to the court. Moreover, á counter affidavit is filed, showing that the appellant had another attorney who had agreed to prosecute the appeal, if, on looking into the record, he should perceive any error to exist, and who was in court when the rule was taken, and the appeal was afterwards dismissed, and declined assigning errors, on the ground that he knew of no error in the record to assign.

It will be a rule of practice whenever a party desires to move to reinstate a cause on the docket, or to set aside a default, and predicates his motion on affidavit, to require him, not only to give the adverse party notice of his intended motion, but also a copy of the affidavit bn which he will found it.

The application is denied.

Motion denied.