Beardsley v. Gosling

86 Ill. 58

• Court: Illinois Supreme Court
• Decided: September 15, 1877
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

The objection taken to the affidavit of merits filed with defendant's plea is exceedingly technical. It is,that although the State and county where made are stated in the caption, the name of the county is not repeated in giving the title of the court in which the cause was pending. It is stated to be in the “ Superior Court,” and we may take judicial notice there is but one court so entitled in the State. But aside from this view there is nothing at all in the objection insisted upon. It is not essential the affidavit should have any caption, if it conforms to the statute in substance, and can be identified as having been filed in the cause. Without any caption it is nevertheless an affidavit. Harris v. Lester, 80 Ill. 807.

On the hearing of the motion to strike defendant’s jilea from the files, the court announced that unless defendant set out in his affidavit of merits his defense in detail the motion would be sustained. The statute has not made it obligatory upon defendant to do so, and he was not bound to submit to the terms imposed. Hays v. Loomis, 84 Ill. 18. -The judgment will be reversed and the cause remanded.

‘ Judgment reversed.