Barrett v. Queen City Cycle Co.
| Decision Date | 04 April 1899 |
| Citation | 53 N.E. 550,179 Ill. 68 |
| Parties | BARRETT et al. v. QUEEN CITY CYCLE CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Assumpsit by the Queen City Cycle Company against George Barrett and others. From a judgment of the appellate court (79 Ill. App. 277) affirming a judgment for plaintiff, defendants appeal. Affirmed.
F. S. Hahn, for appellants.
Hamline, Scott & Lord, for appellee.
This was an action of assumpsit brought by appellee in the circuit court of Cook county against appellants. The declaration contained the common counts for goods sold and delivered, amounting to the sum of $2,000. The action was brought on Decumber 6, 1897. On the next day service was accepted, and, on the 10th day of December, Hahn & Horn, who were attorneys for appellants, entered their appearance in the cause. On the same day a declaration was filed by plaintiff, and on the 23d day of December, no plea having been filed, a default was entered. and judgment rendered for $1,367.97. At the same term of court a motion was made to set aside the default, but it was overruled by the court. The appellants appealed to the appellate court, where the judgment was affirmed, and to reverse the judgment of the appellate court this appeal was taken.
The judgment of a circuit court cannot be reversed on appeal, in a case of this character, unless it appears that there has been an abuse of the discretion of that court; and, where it appears that the party defaulted has failed to exercise due diligence, it has never been held an abuse of discretion to refuse to vacate a judgment. As a general rule, diligence and merits must both appear; otherwise the discretion of the court will not be interfered with in a case of this character. The entire showing as to diligence is embraced in the affidavit of Hahn, appellants' attorney, viz.: ‘That inadvertently no plea was filed, under the following circumstances, to wit: That William F. Dockery, a clerk in the office of defendants' attorneys, inadvertently placed the cause on the office diary for the January term in place of the December term, 1897, for answer to be filed.’ We do not think this affidavit shows proper diligence. The attorneys of appellants knew that the suit was commenced in time to require a plea at the December term of court, and if they had looked at the files they would have found a declaration on file which required an answer at that term. They did not, however, take this...
To continue reading
Request your trial
-
Harder v. Advance Transp. Co.
...defense, alone, is not sufficient. Nitsche et al. v. City of Chicago, 1917, 280 Ill. 268, 117 N.E. 500; Barrett et al. v. Queen City Cycle Co., 1899, 179 Ill. 68, 53 N.E. 550. A motion to set aside a final judgment of a court having jurisdiction is of serious import and the maintenance of s......
-
Till v. Kara
...Co. v. City of Chicago, 215 Ill. 174, 74 N.E. 115. A showing of a meritorious defense alone is not sufficient, Barrett v. Queen City Cycle Co., 179 Ill. 68, 53 N.E. 550. Section 72 of the Practice Act is not intended to relieve a defendant from the consequences of his own negligence. Severa......
-
Harris v. Juenger
...to protect his rights, it has never been held an abuse of discretion to refuse to vacate a default judgment, Barrett v. Queen City Cycle Company, 179 Ill. 68, 53 N.E. 550; Hartford Life Insurance Company v. Rossiter, supra. Appellants by their affidavits admit that they were notified by the......
-
Hartford Life & Annuity Ins. Co. v. Rossiter
...diligence to protect his rights it has never been held an abuse of discretion to refuse to vacate a default judgment. Barrett v. Cycle Co., 179 Ill. 68, 53 N. E. 550. The showing as to diligence is embraced in the affidavit of E. H. Stearns, which states that he is the traveling agent of th......