The Empire Fire Ins. Co. of Chicago v. the Real Estate Trust Co..
| Decision Date | 30 April 1878 |
| Citation | 1 Ill.App. 391,1 Bradw. 391 |
| Parties | THE EMPIRE FIRE INSURANCE CO. OF CHICAGO,v.THE REAL ESTATE TRUST COMPANY. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
Mr. H. F. Valette, for appellant; that the affidavit required by the court was not authorized by the statute, cited Robinson v. Burkell, 2 Scam. 278.
That it was error for the court to refuse to allow the amendments, without imposing terms: Drake v. Drake, 83 Ill. 526; Heslip v. Peters, 3 Scam. 45; Beardsley v. Gosling, 10 Chicago Legal News, 170; McCormick v. Wells, 83 Ill. 239; Hays v. Loomis, 84 Ill. 18; 1 Chit. Pl. 509.
Messrs. Herbert, Quick & Miller, for appellee; that the imposition of terms was in the discretion of the court, cited Rev. Stat. 1874, Chap. 110, § 24; Phillips v. Dana, 1 Scam. 498; Heslip v. Peters, 3 Scam. 45; Miller v. Metzger, 16 Ill. 390; Misch v. McAlpine, 78 Ill. 507; McCord v. Crooker, 83 Ill. 556.
And that this court will not review the exercise of discretion in the court below: Phillips v. Dana, 1 Scam. 498; Garner v. Crenshaw, 1 Scam. 143; Heslip v. Peters, 3 Scam. 45; Greenleaf v. Roe, 17 Ill. 474; Rich v. Hathaway, 18 Ill. 548; Scales v. La Bar, 51 Ill. 232; Mason v. McNamara, 57 Ill. 274.
That the amended pleas were defective, and would have been demurrable if filed, and the court was under no obligation to receive them, the first plea concluding to the country upon a matter properly to be judged by the court: Eppes v. Smith, 4 Munf. 466; Brady v. Commonwealth, 1 Bibb, 517; Boucher v. Williamson, 1 Dana, 227; Brier v. Woodbury, 1 Pick. 362.
The second plea, being a plea to the jurisdiction, does not purport to be pleaded by attorney: Nispel v. W. U. R. R. Co. 64 Ill. 311.
Nor does it deny by positive averments every fact from which jurisdiction may arise: Welch v. Sykes, 3 Gilm. 197; Harrod v. Barrette, 1 Hall, 155; Shumway v. Stillman, 4 Cowen, 292.
The appellee commenced its action of debt against the appellant in the Superior Court of Cook county to the December term, A. D. 1877, to recover upon the record of a judgment of the United States Circuit Court for the Southern District of New York. The trial in the court below resulted in a judgment against the appellant, from which it prayed an appeal to this court, and brings the record here and asks a reversal of the judgment, assigning as error (1), that the court erred in refusing leave to file amended pleas except on condition that defendant should file an affidavit, setting out therein in detail the facts showing a meritorious defense in said cause; (2), that the court erred in requiring an affidavit of defendant as a condition precedent to filing amended pleas; (3), that the condition imposed upon defendant was not statutory nor authorized thereby, nor authorized by common law.
The first error assigned really presents the whole question, and its consideration will dispose of the other two.
It appears that to the plaintiff's declaration the defendant in the court below filed two pleas, to which the appellee filed demurrers, which were sustained by the court, and thereupon appellant moved the court for leave to file amended pleas, to which the appellee objected, that the court granted leave to appellant to do so upon the condition, and only upon the condition, that the appellant should first present an affidavit in which should be set out the facts in detail, showing a meritorious defense in said cause; that the court prescribed no other terms as a condition to be performed or done by appellant before filing amended pleas. It is conceded by counsel for the appellee that the appellant had the legal right, under the twenty-fourth section of the Practice Act, to amend his pleadings after a demurrer had been sustained to them, but it is insisted that the court had the discretionary power to fix the terms on which such leave to amend should be granted, and that the terms fixed by the court, that is requiring the affidavit as above stated to be filed by the appellant, was the reasonable and proper exercise of that power. By the above section it is provided that, “At any time before final judgment in civil suits, amendments may be allowed on such terms as are just and reasonable.” In this case leave to amend was granted, but on terms which appellant claims were not just and reasonable, but were oppressive and unauthorized by law, either by the statute or common law.
This presents the question whether the court, in its discretion, had the right to impose such terms as a condition to granting leave to appellant to file amended pleas. Leave to amend pleadings necessary to present an issue on the merits of a cause is no longer discretionary with the court, but is the legal right of the party. Drake v. Drake, 83 Ill. 526. In this case there...
To continue reading
Request your trial