Burge v. Burge

• Decision Date: 31 January 1878
• Citation: 1878 WL 9834,88 Ill. 164
• Parties: JOHN BURGEv.SARAH BURGE.
• Court: Illinois Supreme Court

88 Ill. 164

1878 WL 9834 (Ill.)

JOHN BURGE

v.SARAH BURGE.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. DUMMER, BROWN & RUSSELL, for the plaintiff in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Defendant in error filed a bill to obtain a divorce from her husband. A summons was issued on the 9th day of May, 1876, returnable to the first Monday of the following August. The writ was duly served on defendant, and on the 10th day of August, he failing to appear or make defense, a default was entered, the bill taken pro confesso, proofs were heard and the prayer of the bill allowed, and a divorce decreed. Nine days afterwards, defendant appeared and entered a motion, based on his affidavit, to set aside the default, and to be permitted to answer the bill. The motion was not accompanied by an answer, but it denied the material allegations of the bill. The court overruled the motion, and defendant brings the record to this court on error, and asks a reversal of the decree of the court below.

It is conceded that this motion was addressed to the discretion of the court, but it is urged that the court so far abused that discretion as to require that the decree should be reviewed and the order denying the motion be reversed, and plaintiff in error allowed to answer and make a defense.

It has been repeatedly held by this court that, on an application to vacate a decree, the defendant must, by affidavit, show vigilance, and accompany his application with a sufficient answer, showing a meritorious defense, before the court will vacate the decree and allow a defense. See Dunn v. Keegin, 3 Scam. 292; Grubb v. Crane, 4 Id. 153; Norton v. Hixon, 25 Ill. 456, and Schneider v. Seibert, 50 Id. 284.

We regard the practice as well established that the party, when the motion is made, must present an answer, or obtain time to prepare it, setting up a meritorious defense, accompanied by an affidavit of its truth, and showing diligence and all reasonable effort to answer and make his defense and a sufficient excuse for not doing so in time to prevent the passing of the decree pro confesso and final decree.

Here, no answer was presented, and the affidavit showed none, the slightest, diligence to prevent the rendition of the decree. The only thing shown for an excuse was, that defendant did not know the case could be tried at the return term. The summons commanded him to appear and answer the bill on the first day of the term, and it was served on him by reading to and leaving a copy with him. He...