Wick v. Weber

Citations

• 64 Ill. 167

Syllabus

<p>1. Affidavit for continuance—whether sufficient. In support of a motion for a continuance an affidavit was filed, which stated that in consequence of the ill health of the party seeking the continuance, he had gone to Europe, and such was his condition, as reported by his physician, that he was unable to return in time for tire trial. The motion was regarded as properly denied, so far as based on the absence of the partjr, as no dil-^ igence was shown. There was no affidavit showing the condition of his health—nothing but the unsworn statement of a physician, which was insufficient; and in view of the fact that the suit was then pending, tire party ought, if he deemed his testimony material on the trial,, to have had his deposition taken before undertaking a journey that would necessarily occupy so much time.</p> <p>2. Same—laches. Where an affidavit for a continuance showed that the witness, whose testimony was desired, was a resident of the county where, all the parties resided, but was temporarily absent, so tliat process could not be served upon him, and the fact of such absence was not known, it was held that no laches could be imputed to the party desiring the wit ness’ testimony. . .</p> <p>3. Same—hearing evidence to contradict—whether will reverse. The rule is, that the affidavit on 'a motion for a continuance must be taken as true, and it is improper for the court to hear evidence to contradict it.. But where the court did hear evidence to contradict some of the statements in such an affidavit, that fact, of itself, was regarded as not constituting ground for reversal, it not appearing that the court took any action upon it.</p>