Gypsum Fireproofing Co. v. Nelson & Lewin

Appellate Court of Illinois

Gypsum Fireproofing Co. v. Nelson & Lewin

205 Ill. App. 460, 1917 Ill. App. LEXIS 1192

CourtAppellate Court of Illinois

DecidedMay 1, 1917

DocketGen. No. 22,412

StatusPublished

This text of 205 Ill. App. 460 (Gypsum Fireproofing Co. v. Nelson & Lewin) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gypsum Fireproofing Co. v. Nelson & Lewin, 205 Ill. App. 460, 1917 Ill. App. LEXIS 1192 (Ill. Ct. App. 1917).

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Opinion

Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to review and reverse a judgment entered in favor of appellee (plaintiff below) against appellant, for - the value of certain goods, wares and merchandise alleged to have been sold by the former to the latter:

The action was originally brought by the United States Gypsum Company, a corporation. The statement of claim was supported by the affidavit of one H. C. Dawson, who was therein designated as the “agent of the plaintiff.” To this statement of claim the defendant filed an affidavit of merits denying any and all liability to the said United States Gypsum Company.

Subsequently, upon motion, the cause was amended by substituting as plaintiff the Gypsum Fireproofing-Company, another corporation. No additional affidavit was filed in support of the claim of the substituted plaintiff. Defendant was then ruled to file another affidavit of merits within ten days, which it failed to do, whereupon a default judgment was entered against it in the sum of $1,302.52.

The controlling question here presented for determination is, whether or not there is any evidence in' the record to support the judgment complained of.

Presumably the United States Gypsum Company and the Gypsum Fireproofing Company are separate and distinct corporations, there being nothing in the record to indicate the contrary. Nor does it appear that the said Dawson was also the agent for the latter corporation. While the original affidavit made by the said Dawson stated that he was the agent of the plaintiff, yet from such recital it does not follow that he was also agent for the Gypsum Fireproofing Company; and although the pleadings were amended by the substitution of parties plaintiff, the affidavit could not be amended in this manner. (Campbell v. Whetstone, 4 Ill. (3 Scam.) 361; Moorehead v. Briggs, 152 Ill. App. 361.) Under such circumstances, proof of plaintiff’s claim was indispensable, in the absence of which the court erred in entering a default judgment against the defendant. Accordingly the judgment must be reversed and the cause remanded.

Reversed, and remanded.

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Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to review and reverse a judgment entered in favor of appellee (plaintiff below) against appellant, for - the value of certain goods, wares and merchandise alleged to have been sold by the former to the latter:

The action was originally brought by the United States Gypsum Company, a corporation. The statement of claim was supported by the affidavit of one H. C. Dawson, who was therein designated as the “agent of the plaintiff.” To this statement of claim the defendant filed an affidavit of merits denying any and all liability to the said United States Gypsum Company.

Subsequently, upon motion, the cause was amended by substituting as plaintiff the Gypsum Fireproofing-Company, another corporation. No additional affidavit was filed in support of the claim of the substituted plaintiff. Defendant was then ruled to file another affidavit of merits within ten days, which it failed to do, whereupon a default judgment was entered against it in the sum of $1,302.52.

The controlling question here presented for determination is, whether or not there is any evidence in' the record to support the judgment complained of.

Presumably the United States Gypsum Company and the Gypsum Fireproofing Company are separate and distinct corporations, there being nothing in the record to indicate the contrary. Nor does it appear that the said Dawson was also the agent for the latter corporation. While the original affidavit made by the said Dawson stated that he was the agent of the plaintiff, yet from such recital it does not follow that he was also agent for the Gypsum Fireproofing Company; and although the pleadings were amended by the substitution of parties plaintiff, the affidavit could not be amended in this manner. (Campbell v. Whetstone, 4 Ill. (3 Scam.) 361; Moorehead v. Briggs, 152 Ill. App. 361.) Under such circumstances, proof of plaintiff’s claim was indispensable, in the absence of which the court erred in entering a default judgment against the defendant. Accordingly the judgment must be reversed and the cause remanded.

Reversed, and remanded.

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205 Ill. App. 460, 1917 Ill. App. LEXIS 1192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gypsum-fireproofing-co-v-nelson-lewin-illappct-1917.

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