Scammon v. McKey

21 Ill. 554

• Court: Illinois Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinion

Caton, C. J.

The Circuit Court may give time to plead upon condition that the party file an affidavit of merits. So far as parties desired to take advantage of the rule allowing them nine days to plead, the other rule requiring an affidavit of merits, was adopted in the exercise of an undoubted power possessed by the court. Where a party files his plea at the commencement of the term or before he is called or the expiration of a rule for a plea, the statute gives him the right to do so without an affidavit of merits. His plea is then filed without the indulgence of the court, and as he asks no favors he cannot be subjected to conditions. In this case there was no plea on file when the default was taken. There was nothing on file for the defendant but what was designed for such an affidavit as the rule required. It was not, however, a compliance with the rule. But had it been the best affidavit which skill and ingenuity could draw and recklessness swear to, it could not prevent a default without a plea. It is the plea and not the affidavit of merits which answers the declaration and prevents a default.' As there was no plea here the default was regular and the judgment must be affirmed.

Judgment affirmed.