Slate v. Eisenmeyer

Citations

• 94 Ill. 96

Syllabus

<p>1. Continuance—affidavit for, how construed. It will be presumed that the statements in an affidavit for a continuance are as favorable to the applicant as the facts will warrant, and, as in the case of a pleading, all intendments, so far as the affidavit is equivocal or uncertain, must be taken against it.</p> <p>2. - Evidence—affidavit for continuance admitted. The court is not bound to admit in evidence, on the trial, an affidavit for a continuance which has been admitted to avoid a continuance, without regard to the competency of its contents as evidence. When such affidavit, if admitted, could not have affected the general result, upon a trial, there is no error in excluding the same.</p> <p>3. The admission of an affidavit to avoid a continuance does not make facts therein stated, which are improper evidence, admissible on the trial. The true test is, could the witness, if present, be permitted to testify to the facts. If not, they should be excluded from, the jury, thus putting the affidavit on an equality with the witness.</p> <p>4. Same—to show extent of possession. A plaintiff in a possessory action, where there is no apparent actual possession of a portion of the premises, may, for the purpose of showing the extent of his possession, put in evidence the deeds or title papers under which he claims. This doctrine is held applicable alike to actions of trespass and forcible detainer. But this principle has never been so extended as to permit a defendant in forcible detainer to introduce such papers to show an adverse title in himself.</p> <p>5. Same—in forcible detainer. Where a husband, under a writ of possession against him, surrendered the possession of land to the plaintiff, and leased the same premises of the plaintiff, and a grantee of the wife of the lessee, when sued in forcible detainer, in an affidavit for a continuance stated that he expected to prove by the wife, under whom he claimed, that she purchased the land in dispute from the “ Chalfin