Schroer v. Wessell

89 Ill. 113

• Court: Illinois Supreme Court
• Decided: June 15, 1878
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

One ground of error insisted upon is, the court refused to set aside the default previously entered against defendant Kramper. While the court might, with great propriety, under the circumstances proved, have set aside the default and permitted defendant to plead, before the cause was reached for trial, yet we can not say there has been any such abuse of that sound discretion with which the court is clothed as would justify this court in reviewing its decision. Setting aside defaults has always been held to be a matter within the sound legal discretion of the court, and unless there has been such an abuse of that discretion as works palpable injustice, it has not been the practice in this court to review such decisions.

The defaulted defendant was served with process on the 29th day of March, and his default was not entered until the 20th of April. Excluding the time he was detained at home on account of severe affliction in his family, there was still time that he could have given his personal attention to the defense of the action before default was entered, which he failed to do. The fact that counsel, whom he may have supposed he had engaged to make his defense, failed to do so, did not make it imperative on the circuit court to set aside the previous default. Thielmann v. Burg, 73 Ill. 293.

As respects the other point made, that proper evidence offered by Schroer was rejected by the court, the decision might be rested on the single ground the testimony offered was not admissible under the general issue, and that was all the plea he had on file. According to previous decisions of this court, a failure or partial failure of consideration of the instrument declared on must be specially pleaded, to enable the party to make that defense. Leggat et al. v. Sands’ Ale Brewing Co. 60 Ill. 158. But the testimony proposed to be given did not even tend to show there had been any failure of the consideration of the note, and for that reason it was properly excluded. By the terms of the note it was payable absolutely twelve months after date, which period had elapsed before suit. It was proposed to give testimony to show that Kramper signed it as surety after it had been executed by the principal and his other surety, on condition plaintiff would extend time of payment, and would bring no suit thereon within that period, the effect of which, if admitted, would be to vary the terms of the written contract by oral evidence, which is not allowed under the rules of evidence.

No error appearing in the record the judgment will be affirmed.

Judgment affirmed.