Chicago v. the Bank of North Am..
| Decision Date | 30 September 1876 |
| Citation | 1876 WL 10237,82 Ill. 493 |
| Parties | CHICAGO, DANVILLE AND VINCENNES RAILROAD CO.v.THE BANK OF NORTH AMERICA. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
Mr. E. WALKER, for the appellant.
Messrs. MCCAGG, CULVER & BUTLER, for the appellee.
Our first conclusion in the present case was, that the court below erred in striking the defendant's plea from the files, and that its judgment should be reversed, and we, accordingly, so adjudged. A rehearing having been ordered, on further and more mature deliberation we have come to the conclusion that our former judgment should be changed, and the judgment of the court below affirmed.
The form of action is assumpsit, and the declaration contains a special count on a promissory note of the defendant, executed by J. E. Young, its manager, bearing date July 29, 1873, payable to one S. J. Walker, four months after date, for $8000, and by Walker assigned to the plaintiff, and also the common counts.
Annexed to the declaration was the affidavit of J. W. Culver, one of plaintiff's attorneys, that the demand of the plaintiff was for the whole amount due on the promissory note, which was copied in full, and that there was due from the defendant to the plaintiff, after allowing to defendant all its just credits, deductions and set-offs upon the promissory note, the full and just sum of $8383.92, at the date of the affidavit, and that the defendant's principal office was in Cook county.
The defendant filed a plea denying the execution of the note, verified by the affidavit of its president. This plea was, on motion of plaintiff's attorney, ordered by the court to be stricken from the files for want of an affidavit of merits, and judgment was thereupon rendered in favor of the plaintiff against the defendant, by default, for $8414.67.
Proper exceptions were taken, and the errors assigned bring these rulings of the court before us for review.
The objection that the affidavit of Culver, annexed to the declaration, was insufficient, because he was but an agent or attorney of the plaintiff, and not the plaintiff in the action, is answered by Young v. Browning, 71 Ill. 44, and The Bank of Chicago v. Hall, 74 Ill. 106, where we held an objection of the same character untenable, and we are not convinced by the arguments in the present case that we were in error in so holding.
But, it is further insisted, no affidavit of merits was required to be filed with the plea, because the defendant is a corporation organized and doing business under and by virtue of the laws of the State of Indiana, and therefore comes within the exception in the statute requiring an affidavit of merits to be filed with the plea.
The language of the statute is: “If the plaintiff, in any suit upon a contract, expressed or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand, and the amount due him from the defendant after allowing to the defendant all his just credits, deductions and set-offs, if any, he shall be entitled to judgment as in case of default, unless the defendant, or his agent or attorney, if the defendant is a resident of the county in which the suit is brought, shall file with his plea an affidavit, stating that he verily believes he has a good defense to said suit upon the merits to the whole or a portion of the plaintiff's demand, and if a portion, specifying the amount (according to the best of his judgment and belief.)”
The affidavit annexed to the declaration alleged that the defendant's principal office was in Cook county. The citizenship (if that term may strictly be applied to a corporation) of the defendant, it will be seen, is unimportant--it will be sufficient if it is a resident of the county; and for the purposes of this question, we think, the well known distinction between citizen and resident, as applicable to persons, should be observed. The rule laid down, and since recognized by this court, in Bristol v. The Chicago and Aurora Railroad Co. 15 Ill. 436, is this: ...
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