McCormick v. Wells

83 Ill. 239

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

Opinion

Mr. Justice Scott

delivered the opinion, of the Court:

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 statute has made it the duty of defendants to file an affidavit setting forth in detail such facts as would satisfy the court they had a meritorious defense to plaintiff’s cause of action, and for that reason they were not Bound to observe the rule. It is sufficient the affidavit is in the language of the statute, that defendants believe they have a defense to the suit, upon the merits, to the whole or a part of plaintiff’s demand. As we have seen, the affidavit in this case answers every requirement of the statute in that particular, and is’therefore sufficient.

The judgment will be reversed, and the cause remanded.

■Judgment reversed.