Mccormick v. Wells
| Citation | 1876 WL 10327,83 Ill. 239 |
| Parties | FRANCIS A. MCCORMICK et al.v.THOMAS J. WELLS. |
| Decision Date | 30 September 1876 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was an action of assumpsit, by Thomas J. Wells against Francis A. McCormick and Joseph Rigby, upon three promissory notes, given by defendants to M. J. Wilson, and by him indorsed to the plaintiff.
The plaintiff filed with his declaration his affidavit of the sum due him from defendants, and on what account, after allowing all just credits, deductions and set-offs.
The defendants pleaded separately, and each filed his affidavit of merits, written on the same sheet of paper with his plea. They are substantially the same, that of Rigby being as follows:
“In the Superior Court of Cook County. To the May Term, A. D. 1876. State of Illinois, County of Cook-- ss:
+-----------------------------------+
¦THOMAS J. WELLS ¦)¦
+---------------------------------+-¦
¦v. ¦)¦
+---------------------------------+-¦
¦F. A. MCCORMICK and JOSEPH RIGBY.¦)¦
+-----------------------------------+
Joseph Rigby, one of the above named defendants, being first duly sworn, on his oath says, that he has a good defense to said suit upon the merits to the whole of the plaintiff's demand.
JOSEPH RIGBY.”
The court struck the pleas from the files, and rendered judgment by default, to reverse which the defendants appealed.
Messrs. PERRY & BULL, for the appellants.
Messrs. BENTLEY & QUIGG, for the appellee.
On motion of plaintiffs, the pleas of defendant were stricken from the files for the alleged want of a sufficient affidavit of merits. This was error. The affidavit contained everything the statute requires, viz: that defendants believed they had a good defense to the suit, upon the merits, to the whole of plaintiff's demand. One objection taken is, the affidavits were not properly entitled in the cause. This precise point was made in Hays v. Loomis, 84 Ill. 19, and it was there ruled, notwithstanding the objection, the affidavit was sufficient.
A rule was laid upon defendants to file an additional affidavit by a day fixed, setting forth in detail such facts as would satisfy the court defendants had a meritorious defense to plaintiff's cause of action, but, defendants failing to make answer to the rule, a default was entered against them. No stat...
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