Cole v. Choteau
Illinois Supreme Court
This was an action of assumpsit for goods sold, work and labor, and on an account stated. Plea the general issue. The summons was returnable in February, 1855, and the plea was filed at the March, term following. At ¡November term, 1855, the defendant applied to have the cause continued upon his affidavit, which stated, in substance, that prior to the last term of the court he caused the deposition of Nathan Cole, of St. Louis, Missouri, to be taken and filed.
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This was an action of assumpsit for goods sold, work and labor, and on an account stated. Plea the general issue. The summons was returnable in February, 1855, and the plea was filed at the March, term following. At ¡November term, 1855, the defendant applied to have the cause continued upon his affidavit, which stated, in substance, that prior to the last term of the court he caused the deposition of Nathan Cole, of St. Louis, Missouri, to be taken and filed. That the main object of the deposition was to prove an agreement between plaintiffs and defendant at the time of the purchase of the…
1Opinion of the CourtScates, C. J.
The question raised upon the affidavit for a continuance is one of diligence. The general rule requires a party to use, and show due diligence in his preparation for trial. But each case depends upon the particular circumstances shown. If they bring the party within the rule, it would be error, under the provisions of the statute, to refuse a continuance.
Here the plaintiff had cross-examined the witness on the very point—to the very fact set up in defense—and upon the alleged reason, that witness knew the contract, being present, and hearing it made. He, therefore, had reason to believe…
2Cited by2 opinions
- Indiana & Illinois Southern Ry. Co. v. G. S. Wilson & SonAppellate Court of Illinois · 1898
- Clough v. KyneAppellate Court of Illinois · 1891