Baldwin v. McClelland

• Decision Date: 19 June 1894
• Parties: BALDWIN v. McCLELLAND.
• Court: Illinois Supreme Court

152 Ill. 42
38 N.E. 143

BALDWIN
v.
McCLELLAND.¹

Supreme Court of Illinois.

June 19, 1894.²

Appeal from appellate court, first district.

Attachment by John W. McClelland against Elias J. Baldwin. Plaintiff obtained judgment, which was affirmed by the appellate court. 50 Ill. App. 645. Defendant appeals. Affirmed.

[152 Ill. 45]Cratty Bros. and Jarvis & Cleveland, for appellant.

152 Ill. 48]C. H. Aldrich, for appellee.

[152 Ill. 43]Appellee brought attachment in the circuit court of Cook county against appellant. The Washington Park Club was served as garnishee. The writ was returnable, and publication was made, to the August term, 1891, of that court. The declaration not having been filed in time, the cause was continued until the September term. On September 23d (being one of the days of said September term) this entry of appearance was filed: ‘We hereby enter the appearance of the above defendant, and our appearance as attorneys for defendant. Cratty Bros., Attorneys for Defendant.’ On the same day there was filed a notice to plaintiff's attorneys that on Wednesday, September 23d, at 10 o'clock a. m., before Judge Tuthill, ‘we shall ask a rule on you to file a more specific bill of particulars, and a bond for costs,’ which was signed by the same attorneys, and dated September 22, 1891, and served the same day. The transcript of the record filed shows that ‘on September 23, 1891, on motion of defendant's attorneys, plaintiff is ruled to file a more specific bill of particulars herein within ten days,’ and that on motion leave was given to file a bond for costs instanter. It further appears from the transcript that on September 25th a bill of particulars was filed. On October 17, 1891,-which is conceded to have been the last day of said September term of said court,-the following proceedings were had and entered of record in said cause: ‘This day comes plaintiff, by his attorney, and it appearing to the court that defendant failed to plead [152 Ill. 44]herein, on a motion of plaintiff's attorney, ordered that the default of said plaintiff be taken, and the same is hereby entered herein of record, for want of a plea filed; wherefore plaintiff ought to have of defendant his damages. Thereupon reference is had to the court to assess the plaintiff's damages, and the court now here, after hearing the allegations and proofs submitted by the plaintiff, and being fully advised in the premises, assesses plaintiff's damages at $3,423.06. Therefore it is considered that plaintiff do have and recover of and from defendant said damages, $3,423.06, as by the court assessed, and costs, and have execution therefor.’ And upon the same day a default was entered against the Washington Park Club, as garnishee, and the following conditional judgment rendered against it: ‘And it further appearing that personal service of process issued herein has been had on Washington Park Club, garnishee, and, it being called, comes not, nor any person for it, plaintiff herein makes default, which, on motion of plaintiff's attorney, is hereby entered herein; wherefore a conditional judgment ought to be entered against said granishee. Therefore it is considered by the court that defendant, for the use of plaintiff, recover from said garnishee $3,423.06, being the amount of the original judgment rendered herein, together with all plaintiff's costs and charges in this behalf expended, unless said garnishee, after being served with scire facias, to be issued, shall show cause why above conditional judgment should not be made final, and execution issued...