Hamilton v. Beardslee

• Decision Date: 30 September 1869
• Citation: 51 Ill. 478,1869 WL 5364
• Parties: JAMES HAMILTONv.CHARLES BEARDSLEE et al.
• Court: Illinois Supreme Court

51 Ill. 478

1869 WL 5364 (Ill.)

JAMES HAMILTON

v.CHARLES BEARDSLEE et al.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding. The opinion states the case.

Mr. C. M. HARDY, for the appellant.

Messrs. MOORE & CAULFIELD, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit brought in the superior court of Chicago. On the default day of the return term, no plea being filed, a judgment by default was rendered. Appellant appeared by his attorney and resisted the rendition of the judgment, on the ground that a declaration had not been filed ten days before the first day of the term. On a motion to set aside the default and to be let in to plead, appellant's attorney swore that he examined the files in the case in the clerk's office on the 22d day of January, 1869, and that no declaration was then filed; that he made a further examination on the 29th, but none was still filed; that on an examination which he made on the 1st of February, the return day, he, however, found a paper purporting to be a declaration in the case, but had upon it no file mark. The first he ever knew of it was on this last day, and he then informed appellant that he was not bound to plead at that term. He also states that appellees' counsel admitted in the presence of the court that the file mark had been placed upon the declaration on the second day of the term. Appellant swears he has a meritorious defense, consisting of a large amount of usury embraced in the note upon which the suit was brought, and that his attorney advised him that he was not required, under the practice of the court, to plead at the return term of the summons; that he employed his attorney on the 21st day of January, 1869, to defend the suit.

The counsel for appellees swears that he prepared the declaration in the case on the 21st of January, 1869, and sent it, by a clerk in his office, on that day, to be filed in the case by the clerk of the superior court. The attorney's clerk swore that on the 21st of January, 1869, he took the declaration to the clerk of the superior court, and filed it in that office, at and on the desk usually occupied by Col. Jacobson, and that he did so in the presence of several of the deputies who were there and saw him; that he had filed other declarations in that manner.

On the hearing of the motion, it was overruled by the court; and the case is brought to this court by appeal, and a reversal is urged, because the court below allowed a default to be entered.

This record presents the question, whether the declaration was filed ten days before the commencement of the return term. It stands admitted that the clerk had not placed any file mark on it, and appellant's counsel swears he searched for a declaration on the next day after the time had expired for filing declarations for the February term, and again five days subsequently, and was unable to find any declaration. And even on the first day of the term, when it was found, it was not marked filed. Nor is there any pretense that doing what the lawyer's clerk calls a filing, he handed it to the clerk, or any deputy, or even called their attention to the fact that he desired to file it. He only laid it on the table, and left. Can this, in any sense, be regarded as a filing? All know that to file a paper in a cause, it must be placed in the hands and...