Archer v. Claflin

• Decision Date: 30 April 1863
• Citation: 31 Ill. 306,1863 WL 3112
• Parties: GEORGE R. ARCHER et al.v.WILLIAM CLAFLIN et al.
• Court: Illinois Supreme Court

31 Ill. 306

1863 WL 3112 (Ill.)

GEORGE R. ARCHER et al.

v.WILLIAM CLAFLIN et al.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Henderson county; the Hon. JOHN S. THOMPSON, Judge, presiding.

This was an action of assumpsit instituted in the Circuit Court by the defendants in error against George R. Archer and ?? Archer, the plaintiffs in error.

Th??s commenced by summons against George R. Archer, and by writ of attachment against Marcellus Archer. The affidavit upon which the writ of attachment was sued out, was made by the attorney of the plaintiffs below, and after setting forth the indebtedness with sufficient certainty, concluded as follows: “And that the said Marcellus Archer, as your affiant ??s informed and verily believes, is about to depart from said State of Illinois, with the intention of removing his effects from the same, to the injury of his said creditors of eight hundred dollars, and further saith not.”

The other proceeding in the cause are sufficiently set forth in the opinion of the court.

Messrs. WEA?? & POWELL, for the plaintiffs in error, relied upon the following points and authorities:

1. The affidavit both original and amended, were clearly insufficient. They were founded upon information and belief, which will not do. Dyer v. Fli?? 21 Ill. 80.

2. The final judgment was rendered by default. If defendants were out of ?? then, they may now take advantage of any error in the ??ceedings, as was done in the case of Dyer v. Flint, 21 Ill. ??.

3. There was a motion filed below to dismiss for want of sufficient affidavit, which was overruled, and plaintiff had leave to amend. He did a??nd, but his amended affidavit was no better than the original. The record therefore shows that the court erred in rendering judgment without a sufficient affidavit. It had no jurisdiction.

4. The rule on defendants to plead was made on the 29th November, and the next day the plea was filed. It was also agreed by counsel that defendant might plead on that day. But it is urged the plea was in abatement. To this we answer, there was no stipulation as to the kind of plea which should be filed, and there was no rule of court requiring the plea to be filed sooner. In fact, the plaintiff on the next day (Dec. 1st) filed his amended affidavit. To this new affidavit defendant had a right to plead in abatement, because, as to that, he was guilty of no laches. The plea stood on the record as an answer to that portion of the affidavit which asserted that Archer was about to remove his property, to the injury of his creditors. The plea was rightfully on the files, it was in apt time, and the court had no right to set it aside. Nor could the court render judgment by default, without first making an order for the defendants to plead anew. A rule should have been entered for a new plea, and if not forthcoming, then perhaps a judgment might have been rendered against them. Ten days ought to have been allowed defendants, after the filing of the new affidavit, to plead thereto.

5. There was a fatal variance between the note and declaration. The words ““without defalcation or discount” are omitted, and the note is described in the declaration as being due on the 17th, whereas it was due on the 16th.

But even if plea was not filed in time, plaintiffs below waived their right to object by taking other steps in the cause before making the motion to strike the plea from the files. 1 Scam. 250; 2 Scam. 463; 5 Gilm. 461.

Mr. M. WILLIAMSON, for the defendants in error, filed a written argument, in which he presented the following points:

Objections to the insufficiency of an affidavit upon which an attachment is sued out, being of a dilatory character, must be taken at the earliest opportunity after appearance; and if not then taken, the objection is waived, and the case will stand for trial on its merits, or a default may be entered.

A plea in abatement traversing such affidavit, is a waiver of its insufficiency.

Where a defendant in the court below moves for a continuance of the cause, and obtains leave to file an affidavit in support of such motion, he thereby enters a full appearance, and waives all dilatory defenses.

If a defendant take any step in a cause, as filing special bail, putting in a demurrer, or plea, or taking a rule for security for costs, and the like, this is such an appearance as cures all errors and defects in process, and the defendant can then only answer to the merits. Strange, 155; 3 T. R. 611; 3 Ohio R. 272; Wright R. 762; 7 Mass. R. 461.

An agreement entered into between the parties after the proper time for pleading in abatement had passed, that the defendant should have “further time to plead,” would be presumed to have reference to such plea as would at that time be proper--a plea to the merits.

And should a plea in abatement be filed after such an agreement, a motion to strike such plea from the files, would not authorize a motion on behalf of the defendant, to dismiss the suit for want of a sufficient affidavit on which the attachment was sued out.

The Circuit Court has power to allow such an affidavit to be amended.

There is no variance between the note as described in the declaration, and that offered in evidence, merely because the words “without defalcation or discount,” as used in the note, were not set forth in the declaration. Those words are inoperative, and it was enough to describe the note according to its legal effect, which was done. 1 Serg. & Rawle, 185; 9 ib. 197; 14 ib. 133; 2 Robinson's Prac. 170; Owen v. Barnum, 2 Gilm. 462.

Nor is there any variance as to the time when the note sued upon, is described to have matured. The note was dated on the 17th of April, 1857, and was payable at six months after date; it was described in the declaration as being payable six months after date, “to wit, on the 17th day of October, 1857.” The note was thus properly described as being payable six months after date, and the words, “to wit, on the 17th day of October, 1857,” should be rejected as surplusage.

But the note was properly described as maturing on the 17th of October; it was payable six months after date; in computing the time upon such a note, the day of its date is excluded; then it became payable on the 17th of October, and not on the 16th of that month, as is contended. See 8 Mass. R. 435; 3 N. Hamp. R. 14; 9 ib. 304; 3 McLean R. 538; 2 Conn. 69; 31 Maine R. 580; 2 Penn. State R. 495; 1 Robinson's Prac. 424, and cases cited.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit commenced by attachment in the Henderson Circuit Court to the April term, 1859, by the defendants in error against the plaintiffs in error, and judgment rendered for the defendants in error. The affidavit for the attachment, and the attachment bond, were filed on the 27th January, 1859, and the writ of attachment issued the same day against Marcellus Archer alone, and was levied on personal property on the first day of February, 1859, and personal service was had on Marcellus and George R. Archer on the 2nd of February, 1859. The declaration was filed on the 27th January, 1859, counting upon a promissory note bearing date April 17, 1857, and payable six months after the date thereof, “to wit, on the 17th day of October, 1857,” to the plaintiffs or order, for the sum of three hundred and ninety-two dollars and forty-seven cents, with interest from maturity, “to wit, from the 17th day of October, 1857,” at the rate of ten per cent. per annum for value received.

At the May term, 1859, the parties appeared by their attorneys, and the defendants interposed a motion to dismiss the attachment, 1, for want of a sufficient bond, and, 2, for want of a sufficient affidavit. Whereupon the plaintiffs entered their motion for leave to file a new bond, which motion was allowed, and the defendants' motion overruled. On the next day the plaintiff filed an amended bond. Four days thereafter, the parties by their attorneys came, and the defendants moved for a continuance of the cause; and on due deliberation, it was ordered by the court, that the defendants have leave to file affidavit by the next morning. On the next morning, the parties by their attorneys came, and by agreement, the cause was continued until the next term at the costs of defendants.

At the next term, on the 29th of November, 1859, the parties by their attorneys came, and on motion, a rule was taken against the defendants to plead “to the action” by the next morning.

On the next morning, the defendants filed a plea in abatement, denying the fact stated in the affidavit, that Marcellus Archer was about to depart the State with the intention of removing his effects from the same. On the next day, the parties by their attorneys came, and on motion of defendants, leave was given them to amend their plea, “and also to amend the affidavit by agreement.”

Four days thereafter, the plaintiffs entered their motion to strike pleas in abatement from the files, which motion, four days thereafter, was allowed by the court.

The defendants failed to plead further, and “being called, came not, nor any person for them, to defend the suit, but made default.”

It was thereupon considered by the court that the plaintiffs have and recover their damages, which the clerk was ordered to assess, who reported the damages as assessed, to be four hundred and eighty dollars and seventy-two cents, for which judgment was entered, together with the costs.

From this judgment the defendants prayed an appeal, and obtained leave to file their bill of exceptions, and appeal bond in sixty days.

On the 26th January, 1860, a bill of exceptions was signed, stating as above, the steps in the cause, and setting out the amended affidavit, which in no material respect, differed from the affidavit first filed.

On the hearing of the motion to strike the plea in abatement from the files, the bill of exception states that the...