Hays v. Loomis

84 Ill. 18

• Court: Illinois Supreme Court
• Decided: September 15, 1876
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

With his pleas, defendant filed an affidavit of merits, substantially in the language of the statute, stating he was defendant in the cause, and that he believed he had a good defense to the suit, upon the merits, as to the whole of plaintiff’s demand. The affidavit was entitled in the cause with the true names of the parties, but they were transposed, as is the usual custom in entitling pleas. On motion of plaintiff, the several pleas of defendant were stricken out, for want of sufficient affidavit of merits. This was error.

In Harris v. Lester, 80 Ill. 307, an objection was taken to an affidavit of non-residence, because it was not entitled in any court or in any cause. It was argued it was not an affidavit at all, but the court held otherwise. The definition given in that case of an affidavit is, it “ is simply a declaration on oath, in writing, sworn to by a party before some person who has authority to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption, it is, nevertheless, an affidavit.” The affidavit in this cause comes within this definition, and must, therefore, be held to be sufficient. It is clearly identified as having been filed in the cause. It was written on the same paper, under the pleas accurately entitled in the cause, with the names of the parties correctly stated. More exactness savors of useless technicality.

The first affidavit of merits filed by defendant with his pleas was, by the court, adjudged to be insufficient. A rule was then laid upon him to file a further affidavit, disclosing particularly the nature of his defense, or submit to have his pleas stricken from the files for want of a sufficient affidavit of merits. As was declared in McCormick v. Wells, 83 Ill. 239, defendant was not bound to observe the rule. But having undertaken to comply with the rule, it was incumbent on him, according to the decision in Stuber v. Schack, 83 Ill. 191, to set forth, in detail, such facts as would show he had a meritorious defense to plaintiff’s cause of action. That, defendant has done in this case. If the facts alleged in the affidavit are true, they show a meritorious defense to the whole of plaintiff’s claim. Defendant swears he believes they are true, and that is all he ought to be required to state in order to have his case submitted to the consideration of a jury.

The judgment will be reversed and the cause remanded.

Judgment reversed.