grantor, we said (page 654, 138 Ill., page 984, 28 N. E.): "The act of the grantor in handing the deed to his attorney, or in leaving it with him, with instructions to deliver it to the complainant as soon as the marriage was solemnized, was not a parting with the instrument with the intention of relinquishing all dominion over it, but merely putting it into the hands of an agent, whose possession, so long as it continued, was the possession of the principal. Until the agent,

thus charged with the duty of making delivery, actually delivered the deed, the instrument was no more operative than it would have been if it had remained in the personal custody of the grantor."

If the rules above announced be applied to the facts of the present case, it is quite clear that there was no delivery of the deed, although it may have been the intention of Silas W. Powell, deceased, to give the property in question to his niece, the appellant. If he had executed a deed to her, and that deed was present when the interview took place between himself and Strottner, he never parted with his control over it; or, if he did so for a few minutes, his control over it was resumed. He handed the deed, together with some notes, to Strottner to be inclosed by mail to his niece, who was absent. Strottner wrote a note to the appellant, and inclosed the notes given to her, but said that the envelope was too small to hold the deed. He thereupon left the deed upon the table or dresser where he had been writing, or handed it back to Powell, and then left, and never saw it afterwards. It is clear that the deed never left the possession or control of Powell. In this matter Strottner was merely the agent of Powell to make a delivery of the deed. Whatever possession and control Strottner had of the deed was the possession and control of Powell, his principal. It cannot be said that he was the agent of appellant, the grantee, to receive and accept the deed, as well as the agent of Powell, the grantor, to deliver the deed. As has been stated in the quotation above made, the interests of Powell and of appellant, being those of grantor and grantee, were diametrically opposed, and Strottner could no more be the agent of both parties than could an agent of the seller of property be the agent of the purchaser in the same transaction. Story, Ag. (9th Ed.) § 211.

2. In order to render a deed operative to pass title, it is not only necessary that there should be a delivery of the deed by the grantor, but also that there should be an acceptance thereof by the grantee. There is no evidence in this record of any acceptance of this deed, if there was a deed, by the appellant. In Moore v. Flynn, 135 Ill. 74, 25 N. E. 844, we said (page 79, 135 Ill., page 846, 25 N. E.): "The acceptance of the conveyance by the grantee is as essential as the delivery by the grantor; and where the acceptance is not proven, and the

facts do not justify the presumption of law that the grantee has accepted, the title does not pass. 5 Am. & Eng. Enc. Law, p. 446, and cases cited; Wiggins v. Lusk, 12 Ill. 132; Kingsbury v. Burnside, 58 Ill. 310, 11 Am. Rep. 67; Dale v. Lincoln, 62 Ill. 22. In respect to a grantee who is not under legal disability the rule is that, when such grantee is aware of the conveyance, and does not dissent, and the conveyance is positively beneficial to him or her, acceptance will be presumed, but that no such presumption will arise so long as the grantee is ignorant of the conveyance." In the case at bar, Mrs. Dagley, the appellant, was under no legal disability. She was not aware, so far as the record shows, of the existence of any deed from her uncle to herself until after his death. As she was ignorant of the existence of any such conveyance, if it did exist, no presumption of acceptance on her part arises, although the deed was beneficial to her. She states in her testimony that the letter in which her uncle inclosed the notes to her was lost or destroyed, and she was unable to say what the contents of the letter were. She says that in it were "just a few words, and two notes." It does not appear that anything was said in the letter about the deed. This deed was never seen after the death of Powell, and was never in the possession of appellant, or of any other person, so far as known. One witness testifies that under the instructions of Powell he one day threw a deed into the fire, and the same was burned up. The witness, however, was unable to say what deed this was. The evidence does not show whether it was the deed executed to Ora Gillam or the deed alleged to have been executed to appellant.

3. There is really no competent evidence in the record of the execution of a deed to the appellant. The witness Strottner states that Mr. Powell handed him a deed to be sent by mail to his niece, but Strottner does not state that he opened the paper handed to him and called a deed by Powell, or that he read the deed, or knew anything about its contents. except that Powell called it a deed. There is some evidence tending to show that the deed was drawn and acknowledged before a notary or justice by the name of Carroll, but Carroll had been dead some two years before the trial of this case. The only evidence that Carroll did draw the deed and take the acknowledgment of it, is the statement of one witness that he saw Carroll go to Powell's house at one time, and saw him come away from the house, and that Carroll stated that he had taken the acknowledgment of a deed. But there is really no evidence in the record of the loss of the deed, or of the inability of the appellant to produce it, nor is there any evidence by any witness who ever saw the deed as to what its contents were. When parol proof of the existence and contents of a lost deed is offered

as the only evidence thereof, the witness must have seen and read it, and be able to speak pointedly and clearly as to its tenor and contents, and to state whether it conveys a fee simple, a life estate, or a term for years, and whether it in fact was executed by the supposed grantor. Rankin v. Crow, 19 Ill. 626. No such testimony as is thus required was introduced in this case.

We are of the opinion that the judgment of the circuit court is correct. Accordingly that judgment is affirmed. Judgment affirmed.

(197 Ill. 369)

STAUNTON COAL CO. v. MENK. (Supreme Court of Illinois. June 19, 1902.) TRIAL-DOCKET-ORDER OF TRIAL-CHANGE-NOTICE NEW TRIAL-AFFIDAVITS

-SUFFICIENCY.

1. An affidavit by the clerk stated that defendant's case was No. 76 on the docket, and that at his request the court set it for trial. It did not appear that any case of less number was set for trial after No. 76, and only two larger numbers were set for trial before it, and it did not appear that they were actually tried, or were not passed, continued, or dismissed. Held that it did not appear that defendant's case was tried out of its order.

2. Prac. Act, §§ 14-16, requiring the clerk to keep a docket of cases in order of their commencement, and to set the cases for as many days as he shall deem necessary or the court direct, and providing that they shall be tried in their order, "unless the court for good and, sufficient cause shall otherwise direct," confers a discretion on the court, not reviewable except for abuse; and the mere fact that the court changed the order at the suggestion of the clerk, and in the absence of attorneys, does not show cause for review.

3. An affidavit by an attorney, in support of a motion to set aside a verdict for the reason that the cause was tried out of its order, showed that the affiant knew the number of cases on the docket entitled to prior trial, and it did not appear that he had any reason to suppose his case would not be reached as early as the day on which it was tried, if the order had not been changed. The affiant knew as early as October 12th that the jury had returned their verdict, but his application to set it aside was not made until November 12th. Held, that the affidavit did not show due diligence.

4. The negligence of an attorney in not being present when his case is called for trial is the negligence of the party he represents, and the party is not entitled to a retrial.

5. Affidavits of a party and his attorney in support of a motion to set aside a verdict on the ground that the time of trial was changed without notice, stating that the attorney had no notice, but silent as to the party, were insufficient.

Appeal from appellate court, Third district.

Action by Clara Menk, administratrix, against the Staunton Coal Company. From a judgment of the appellate court (99 Ill. App. 254) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an action on the case, begun on September 7, 1900, by the appellee, as administratrix of the estate of Otto Menk, deceased, who was her husband, against the appel

lant, the Staunton Coal Company, to recover damages for the death of her husband while engaged as an employé of the appellant in a coal mine belonging to or operated by the appellant. A plea of not guilty was filed, upon which issue was joined. The case was tried at the September term of the circuit court of Macoupin county, which began on the 17th day of September, 1900, being the third Monday of September. The trial took place on October 10th, in the absence of appellant's counsel, and verdict was returned against appellant. Upon November 12, 1900, the defendant, by its attorney, moved the court to set aside the verdict and award a new trial. On November 22, 1900, the motion so made was heard, and in support of the same the appellant filed three affidavits, -one of William Struthers, the president of the appellant company; one of John Homer, Iclerk of the circuit court of Macoupin county; and one of appellant's attorney. The rules of said circuit court were also introduced in evidence. The court overruled the motion to set aside the verdict and grant a new trial, and entered judgment in favor of appellee upon the verdict. An appeal was taken from this judgment to the appellate court, and, it having been there affirmed, the present appeal is prosecuted from such judgment of affirmance.

Charles W. Thomas, for appellant. Zink, Jett & Kinder, for appellee.

MAGRUDER, C. J. (after stating the facts). The alleged ground upon which it was sought by the appellant in the court below to set aside the verdict and grant a new trial was that the circuit court tried the case out of its order on the docket at the request of appellee's attorneys, and without notice to the appellant, and without any good cause for so trying the case out of its order.

1. If it be assumed that it was proper, upon this motion to set aside the verdict and for a new trial, to introduce affidavits for the purpose of showing a trial out of its order upon the docket, it must be said that here the affidavits filed do not show a trial of the cause out of its order upon the docket. Section 14 of the practice act provides that "the clerks of the courts shall keep a docket of all the causes, pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and the name of the plaintiff's attorney, and he shall furnish the judge and bar, at each term, with a copy of the same, in which all indictments and causes, to which the people may be a party, shall be first set down, after which shall be set down all cases in law, in order, according to the date of their commencement, and lastly, the suits in chancery." Section 15 of the same act provides that "the clerk shall set and apportion the causes for as many days of the term as he may think necessary, or be directed by the judge." Section 16 of the same act provides that "all causes shall be

tried, or otherwise disposed of, in the order they are placed on the docket, unless the court for good and sufficient cause shall otherwise direct." 3 Starr & C. Ann. St. (2d Ed.) pp. 2991, 2992. The only one of the three affidavits filed by appellant which bears directly upon this subject is the affidavit of Homer, the clerk of the circuit court. His affidavit shows that he had been clerk of the court for eight years, and that during that time it had been the custom of the court to call the docket every Monday or Tuesday, and set for trial for the coming week as many cases, irrespective of their kind or position on the docket, as would probably occupy the time of the court for that week, and that this was generally done by consent of counsel, and in such manner as to accommodate them as much as possible. He states that, in accordance with this custom, certain cases on the law docket of the court were set for trial on each day, except Saturday, of the first week of the term. It appears from his affidavit that at the September term, 1900, of the circuit court, there were on the docket 64 criminal cases, 100 law cases, and 115 chancery cases, and that the number of the case at bar upon the law docket was 76. The clerk states in his affidavit that on Friday, September 28, 1900, another setting of cases was arranged for the week ending with Friday, October 12, 1900, and that on the former day the court announced that the case at bar would be set for trial for October 10, 1900. The clerk also states in his affidavit that he was requested by the attorneys for the appellee to have said cause set for trial, and that he asked the court to set it for trial; but the selection of the day for the trial was made by the court, and without suggestion by the clerk or the attorneys. It also appears from this affidavit that when the case was set for trial for October 10th none of the attorneys for either party were present. There is nothing in the affidavit of Homer, the clerk, and nothing in either of the other affidavits, to show that when this case, whose number was 76 on the law docket, was tried, all the other cases standing on the docket before it had not been disposed of for the term. If all the cases preceding it upon the docket had been tried or disposed of before it was reached, it cannot be said that it was tried out of its order. It does not appear that any case preceding it, and having a less number than 76, was set for trial after the day when No. 76 was set for trial. Of all the cases shown to have been set for trial before September 28, 1900, the numbers were less than 76, except two, to wit, 96 and 99. But there is nothing to show that Nos. 96 and 99 were actually tried, or that they were not passed, or continued, or dismissed, or otherwise disposed of by the court without a trial. Where it is not shown what disposition is made of cases set for trial out of their order on the docket, and where it does not appear that they may not have been passed without being finally dis

posed of for the term, it is to be presumed, in the absence of any statement of the cause in the record, that the court had good and sufficient cause for what was done. Smith v. Barlow, 67 Ill. 519; Anthony v. International Bank, 93 Ill. 225.

2. But, even if the case was set for trial out of its order upon the docket, section 16 gives the court the right to take such action for good and sufficient cause. That section only provides that causes shall be tried in the order they are placed on the docket, "unless the court for good and sufficient cause shall otherwise direct." It nowhere appears in the affidavits that the court did not have good and sufficient cause for setting the case for trial on Wednesday, October 10, 1900. A statute which directs that a court may do a thing on good cause shown vests a discretion in the court. 8 Am. & Eng. Enc. Law, p. 1357; Kerchner v. Singletary, 15 S. C. 535; Kendall v. Briley, 86 N. C. 54; People v. Sessions, 62 How. Prac. 415. The statute does not determine what shall constitute sufficient cause for trying a case out of its order on the docket; but that is a matter to be determined by the court, in the exercise of a sound legal discretion. When the court so exercises its discretion in the matter, its action will not be interfered with by a reviewing court, unless there has been a clear abuse of its discretion. Clark v. Marfield, 77 Ill. 258; Morrison v. Hedenberg, 138 Ill. 22, 27 N. E. 460; Crosby v. Kiest, 135 Ill. 458, 26 N. E. 589; In re Estate of Wincox, 186 Ill. 455, 57 N. E. 1073; Smith v. Bank, 79 Ill. 118. In Hinckley v. Dean, 104 Ill. 630, it was said that the dispatch of business, and the saving of time and expense to witnesses, litigants, and jurors, required that some discretion should be possessed by the court over its docket, and that, for the accomplishment of just such purposes and others, the statute gave to the court the discretion to dispose of cases out of their order for a good and sufficient cause. Here the clerk, at the request of the attorneys of one of the parties, suggested to the court that this case be set for trial. The statute provides that the clerk shall keep a docket of all the cases, and that the people's causes shall be set down first in order, and the cases in law next in order. It also authorizes the clerk to set and apportion the causes for as many days of the term as he may think necessary, or may be directed by the judge to do. Action by the clerk and judge together, or in consultation with each other, seems to be contemplated by the statute; and hence it cannot be said that there was no good and sufficient cause for the action of the judge in the present case, merely by reason of the fact that a suggestion on the subject was made to him by the clerk. There is nothing in the affidavits to show that the present case would not have been called or reached for trial on October 10th, if it had not been specially set for trial on that day. It may have been so set by the court, with

due regard to the dispatch of the business of the court, and with due regard to the rights of the parties and the convenience of jurors and witnesses. At any rate, it does not appear that there was any abuse of the discretion upon this subject which the law vests in the trial court.

3. The affidavits filed by the appellant in the court below do not show that due diligence was exercised by it in this matter, and do not show sufficient excuse for not being present in court at the time when the case was set for trial. Affidavits filed in support of applications to set aside judgments by default, or entered in ex parte proceedings, are to be construed most strongly against the party making the application. Crossman v. Wohlleben, 90 Ill. 537. According to the statements in the affidavit of appellant's attorney, he knew that the number of the case at bar was 76 on the law docket for the September term, and that there were 75 law cases and 64 criminal cases on that docket ahead of the case at bar and entitled to prior trial. This being so, it was the duty of the appellant to take notice, or at least it is presumed to have taken notice, of every step taken in the cause. Schneider v. Seibert, 50 Ill. 284. In his affidavit the attorney states that in the due course of business the cases ahead of No. 76 could not have been tried in their order before the latter part of October, or the middle of November, 1900. He also states that he wrote to the clerk of the court on the 10th day of October to inquire when said cause would be for trial, and received notice on the 12th day of October from the clerk that the case had already been tried on October 10th. The attorney had no reason to suppose, so far as is shown by the affidavits, that the present case would not be reached in its regular order upon the docket before the latter part of October, or the midIdle of November, 1900. There is nothing to show that the case would not have been reached as early as the day upon which it was set for trial. It is the duty of a party to be present when his case is reached. His negligence in ascertaining when the case will be reached does not excuse his absence. If appellant relied upon the opinion of its attorney as to the time when the case would be reached for trial, it did so at its peril. The negligence of the attorney in such matters is the negligence of the client. Mendell v. Kimball, 85 Ill. 582; Walsh v. Walsh, 114 Ill. 655, 3 N. E. 437; Lawler v. Gordon, 91 Ill. 602; Schultz v. Meiselbar, 144 Ill. 26, 32 N. E. 550. The affidavit of appellant's attorney shows that he knew, as early as October 12, 1900, that the jury had returned their verdict; but his application to set it aside was not made until November 12, 1900, a month thereafter, and the affidavits in support of the motion were not filed until November 22, 1900. Where it is claimed that a judgment has been taken irregularly, the party complaining must avail himself of the first rea

sonable moment after the irregularity is discovered to correct it. Andrews v. Campbell, 94 Ill. 577; Ryder v. Twiss, 3 Scam. 4. Where a default was entered on the 9th day of the month, and the attorney knew of it on the next day, and did not make a motion to set aside the default until the 17th of the month, and there was no explanation of the delay in making the motion, it was held that such delay in making the motion may have influenced the exercise of the court's discretion in the matter of setting the default aside, and that, therefore, there was no such abuse of the court's discretion as would justify an interference with its exercise. Andrews v. Campbell, supra. The president of the appellant company makes an affidavit in this cause, but nowhere states therein that he did not have notice that this cause was set for hearing on October 10th; and the attorney of the appellant, while he states in his affidavit that he had no notice of the setting of the cause for trial on October 10th, yet does not state that his client, the appellant, did not have such notice. Inasmuch as the affidavits must be most strongly construed against the appellant, it is not here made to appear that the case was set for trial on October 10th without notice to the appellant. If the appellant had such notice, it was its duty to inform its attorney of it. The judgment of the appellate court is affirmed. Judgment affirmed.

(197 111. 208)

METZGER et al. v. MORLEY. (Supreme Court of Illinois. June 19, 1902.) JUDGMENTS-ENTRY-CORRECTION-RECORD -APPEAL-ESTOPPEL.

1. The clerk of court, instead of entering a formal judgment, wrote on the record, “And judgment on the verdict for $1,521," and the minutes of the trial judge contained the entry. "Trial by jury, and verdict for $1,521, and motion by defendant for new trial overruled, and judgment on verdict for $1,521, and appeal prayed and allowed." Held, that the record was sufficient to permit the entry of judgment at a subsequent term.1

2. The clerk of court, instead of entering formal judgment, wrote on the record, "And judgment on the verdict for $1,521," and plaintiff successfully insisted on dismissal of an appeal by defendant for the reason that there was "no sufficient final judgment" on the verdict from which an appeal could be taken. Held, that plaintiff was not estopped by such objection from subsequently moving in the trial court for an entry of judgment in proper forin.

Appeal from appellate court, Third district. Action by Stephen K. Morley against William Metzger and another. From a judgment of the appellate court (99 Ill. App. 280) affirming a judgment granting plaintiff's motion to enter the judgment in proper form, defendants appeal. Affirmed.

A. E. De Mauge and Geo. K. Ingham, for appellants. V. Warner, for appellee.

1 See Judgment, vol. 30, Cent. Dig. § 541

WILKIN, J. On the 16th day of March, 1900, Stephen K. Morley, by his attorneys, Moore & Warner, entered a motion in the circuit court of De Witt county to redocket the case of Morley against Metzger et al., and for an order directing its clerk "to enter of record, in full and proper form, the judgment theretofore pronounced and rendered by the court in said cause, as of the date when said judgment was pronounced and rendered." Due notice of the motion was given to the defendants, and they appeared therein, and resisted the same. The court granted the motion, and made an order as follows: "And the court, being fully advised in the premises, doth redocket said cause, and finds that on the 6th day of December, A. D. 1896, at a regular term of said court, on the verdict of the jury in said cause, the court pronounced and rendered a judgment in favor of the plaintiff and against the defendant for the sum of $1,520.09 damages and costs of said cause, and that the clerk of said court failed to enter of record said judgment in full and proper form. Therefore, in consideration of the premises, the court hereby orders and directs said clerk to enter of record, in full and proper form, in said cause, as of date December 6, A. D. 1898, said judgment in favor of plaintiff and against defendant for the sum of $1,520.09 and costs of said cause, the judgment pronounced and rendered by the court in said cause on said last-mentioned date." To the entry of this order the defendants excepted. The clerk thereupon entered up in due form a judgment according to the directions of said order, to which the defendants also then and there excepted, and prayed an appeal to the appellate court, which was allowed. That court having affirmed the judgment of the circuit court, this further appeal is prosecuted.

The only question in the case is whether there was a sufficient minute, note, or memorial paper appearing of record in the court to justify the entry of the judgment at a subsequent term. We held in People v. Quick, 92 Ill. 580, that the court at a subsequent term may, from its minutes or other proper evidence, enter an order nunc pro tunc correcting a judgment so that it will show the real judgment in fact rendered; and in Howell v. Morlan, 78 Ill. 162, we said: "If, then, it be true, as disclosed by the record, that judgment was entered upon the verdict at the term it was returned into court by the jury, and the clerk omitted to write up the judgment in the record, the court, at a subsequent term, undoubtedly had the power to order the judgment entered nunc pro tunc. In Freem. Judgm. § 61, the author says: "The entry of a judgment nunc pro tunc is always proper when a judgment has been ordered by the court, but the clerk has failed or neglected to copy it into the record.'" The only qualification of this rule is that the subsequent order must be made upon something appearing in the record, and not merely upon parol

testimony, nor upon the mere memory of the judge himself. This case was before us at a former term on appeal from the appellate court by Metzger and others, heard in that court on appeal from an informal judgment entered December 6, 1898. Upon that appeal in the appellate court appellants assigned for error the insufficiency of the clerk's entry of the judgment, whereupon appellee moved to dismiss the appeal for the reason that there was no final judgment in the circuit court from which an appeal could be prosecuted. The appellate court sustained the motion, and dismissed the appeal, and we affirmed that judgment. Metzger v. Morley, 184 Ill. 81, 56 N. E. 299. It appeared from the record in that case that the clerk, instead of entering a formal judgment upon the verdict of the jury, simply wrote upon the record, “And judgment on the verdict for $1,521.09." We said, in affirming the judgment of the circuit court: "The recital so made by the clerk amounts to nothing more than a loose memorandum, evidently intended as a guide to the clerk in making up his record at some subsequent time. Such an entry by the clerk cannot be called a judgment." It has always been held by this court that the minutes of the judge, though not properly any part of the record in a case, are sufficient to authorize the entry of an order or judgment at a subsequent term. It appears from the bill of exceptions in this record that the judge did consider his minutes made at the time of the trial, as follows: "Trial by jury, and verdict for $1,521.09, and motion by defendant for new trial. Motion overruled, and judg. on verdict for $1,521.09, and appeal prayed and allowed; bond in $3,000, in 20 days, to be approved by clerk by agreement; b. of e. in 120 days." We are unable to see why the attempted entry by the clerk, "And judgment on the verdict for $1,521.09," with the foregoing minutes of the judge, was not amply sufficient to authorize the order and judgment nunc pro tunc in question. To hold otherwise would be to deprive the court of the power to make its record speak the truth under any and every circumstance.

It is insisted, however, by counsel for the appellants, that the appellee is not in a position to insist that judgment was pronounced at the December term, 1898, because of his contention upon the former appeal. This is upon the assumption that it was insisted in the appellate court, and in this court on the motion to dismiss that appeal, that no judgment whatever had been pronounced upon the verdict. But that was not the real contention of the appellee. His contention then was that no sufficient final judgment had been entered upon the verdict. He did not then contend that judgment had not been pronounced by the court upon the verdict, nor that no sufficient memorandum of that fact appeared of record upon which a proper judgment could thereafter be entered, but simply that the clerk had failed to enter up a