Scales v. Labar

51 Ill. 232

• Court: Illinois Supreme Court
• Decided: September 15, 1869
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

It is the rule of this court to regard the matter of setting aside defaults as largely discretionary with the circuit court, and to interfere only in cases where it is plain that such discretion has been wrongfully and oppressively exercised. We can not say the present is a case of that character. The plaintiffs in error claim they had filed a plea before the default was taken. The record, however, is silent upon that point, and the affidavits filed to establish that fact are so loosely drawn that only by a wide latitude of construction can they be regarded as stating that a plea had been filed in the case at bar. We can not say the court erred in refusing to set aside the default, upon these affidavits, the more especially as it gave the appellant leave to renew his motion upon new affidavits. The motion was then renewed upon new affidavits, and again overruled by the court, on the ground that copies of the new affidavits had not been served on the opposing counsel, 'as required by a standing rule of the court. No further motion was made until the next' term, when, as held in Cook v. Wood, 24 Ill. 295, and Smith v. Wilson, 26 ib. 186, it was too late. The plaintiff in error has no right to complain of these proceedings. His first affidavit was very loose and uncertain, and the court granted all he could demand in giving him leave to renew his motion upon' fresh affidavits, and in renewing his motion, it was his duty to comply with the standing rules of the court.

The judgment of the court below must he affirmed.

Judgment affirmed.