Keeley v. O'Brien

Citations

• 66 Ill. 358

Syllabus

<p>1. New trial—on ground of surprise. Where a cause was tried in its regular order when reached on the call of the' docket, the defendant and his attorneys not being present, and the affidavits of the defendant failed to show the exercise of proper diligence, or that he had a valid defense to the merits, and on the question of surprise, and whether counsel for the defendant were misled by assurances of counsel for the plaintiff, the evidence was conflicting: Held, that the court below did not err in refusing to grant a new trial.</p> <p>2. Partnership—sufficiency of evidence to show: In a suit by an administrator to recover for services.performed by his intestate, the defendant filed his affidavit in support of a motion for a new trial for the purpose of showing that he had a defense. It appeared that the deceased and his brother had both been working for the defendant, and defendant deposed that they told him to keep their account jointly: Held, that such a direction could not make them partners, unattended by other circumstances.</p> <p>3. Payment—sufficiency of affidavit as to. The defendant in his affidavit in support of a motion for a new trial, deposed that the deceased, (the suit being by his administrator to recover for his services), directed the defendant to pay the money due him to his brother, and that defendant settled with the brother: Held, that the affidavit failed to show payment to the brother. It only showed an adjustment of the amount due; and in that case a mere verbal request to pay the same to the brother, unexecuted, would not bind the parties, and therefore was no bar to a recovery by the administrator.</p>